Hildebrand (as executor of the estate of the late Elma Hildebrand) v SAS Trustee Corporation

Industrial Relations Commission (NSW)|2012-11-06|Before: Walton J

al Officers' Association Amalgamated Union of New South Wales and Department of Education and Communities [2013] NSWIRComm 32 Romeo v Papalia [2012] NSWCA 221 Tarn v Scanlan; Nielsen, Andersen & Company v Collins [1928] A.C. 34 Woollard v SAS Trustee Corporation [2012] NSWIRComm 51 Texts Cited: G E Dal Pont, Law of Agency (2001) G E Dal Pont, Law of Agency 2nd ed (2008) Category: Principal judgment Parties: John Hildebrand (as executor of the estate of the late Elma Hildebrand) (Appellant) SAS Trustee Corporation (Respondent) Representation: C S Simpson of counsel (Appellant) T M Ower of counsel (Respondent) Trenches McKenzie Cox Solicitors (Appellant) SAS Trustee Corporation (Respondent) File Number(s): IRC 555 of 2012

Judgment 1Mr Leslie Hildebrand was a member of the State Superannuation Scheme ("the SSS") governed by the Superannuation Act 1916 ("the Act"). He received a pension under that scheme from 1984 until his death on 20 January 2010. 2For almost 60 years, Mr Hildebrand was married to Mrs Elma Hildebrand. Upon the death of her husband, Mrs Hildebrand, as his widow, had a reversionary pension entitlement under the Act. Further, she thereby had an entitlement to commute the whole or part of that pension under s 21C(1) of the Act. 3On 5 November 1998, Mrs Hildebrand executed a general Power of Attorney appointing Mr John Hildebrand (a son of Mr and Mrs Hildebrand) as her attorney. The appointment was expressed to be enduring, despite any subsequent loss of capacity of the grantor. 4The Power of Attorney was witnessed by Mr John Goodwin, a solicitor in the firm Trenches McKenzie Cox ("Trenches") in the City of Lismore where Mr and Mrs Hildebrand had resided. He gave advice as to the Power of Attorney at the point of its execution. On 20 April 2010, Mr Goodwin wrote to "State Super" (this is a shorthand expression for the SSS which is administered by Pillar Administration ("Pillar") on behalf of the Trustee, SAS Trustee Corporation, the respondent to these proceedings ("the STC" or "the respondent")). 5In the letter of 20 April 2010, Mr Goodwin stated that "Mrs Hildebrand wishes to take a lump sum payment". That correspondence is central to the issues requiring resolution in these proceedings. 6Mr Goodwin's correspondence was received by Pillar on 22 April 2010 (it was accepted, therefore, that the correspondence was received by the STC on that date). 7Mrs Hildebrand passed away on 26 April 2010. 8In a letter dated 17 June 2010 signed by an employee of Pillar, the STC informed Trenches it had decided that "no valid election to commute was made by Mrs Hildebrand or her nominated attorney, John Hildebrand", and that, accordingly, her estate would receive the balance of any pension payable to her until her death and no more. 9The appellant lodged a dispute against that decision under s 67 of the Superannuation Administration Act 1996 ("the SA Act"). The STC Disputes Committee considered the dispute and, by letter dated 7 December 2010, upheld the original decision of the STC. 10This matter concerns the appeal against the determination of the STC Disputes Committee and is brought, pursuant to s 88(1) of the SA Act, by Mr John Hildebrand, as executor of the estate of Mrs Hildebrand (the short form "the appellant" shall be used to refer to Mr John Hildebrand, both in that capacity and, for convenience, in any personal capacity mentioned as part of a discussion of the factual history of this matter). 11The appellant is entitled to bring the appeal as a person aggrieved by the determination of the STC; the executor of the estate of Mrs Hildebrand having, in my view, such an interest. 12When expressed in general terms, the central issue in these appeal proceedings is whether the Trenches letter of 20 April 2010 constituted a valid election by Mrs Hildebrand to commute her pension via her attorney. The notion of validity can be understood, in the context of these proceedings, as concerning the issue of whether an election was made in the communication by Trenches on 20 April 2010 to the STC and, if so, whether that election was effective under the Act (see Ballas v Theophilos (No 2) [1957] HCA 90; (1957) 98 CLR 193 at (194) - (197) per Dixon CJ, at (198) per McTiernan J and at (198) and (207) - (210) per Williams J). 13However, the parties accepted, during the course of the hearing, that the determination of those issues should be approached within quite specific parameters, defined by three questions (which questions shall be set out below). Ultimately, then, references to validity in this judgment should be understood as confined in that manner.

14In the notice of appeal, the appeal is stated as one challenging the decision of the STC that "no valid election to commute Elma Hildebrand's pension was made by Mrs Hildebrand or her attorney in accordance with section 91 of the Superannuation Act 1916". 15The appellant relied upon nine grounds in support of that appeal. Omitting those which concerned essentially statements of fact, the grounds provided: 5. By letter dated 20 April 2010, Mrs Hildebrand elected to commute that pension under s21C of the Superannuation Act 1916 (the "Act"). 8. The determination made by the respondent and its disputes committee was wrong and contrary to the provisions of s21C and s91 of the Act. 9. The respondent has failed to determine and pay the lump sum pension amount to which the appellant, as executor of the estate of Mrs Hildebrand, is entitled. 16The appellant sought the following orders: 1. An order that the SAS Trustee Corporation determine that the late Elma Margaret Hildebrand elected, for the purposes of s21C of the Act, to commute the pension to which she was entitled with such election to take effect from the date on which the election was received by SAS Trustee Corporation being 22 April 2010. 2. Alternatively, an order that the Commission hereby determines, pursuant to s88(3) of the Superannuation Administration Act, that the late Elma Margaret Hildebrand elected, for the purposes of s21C of the Act, to commute the pension to which she was entitled with such election to take effect from 22 April 2010. 3. The costs of this appeal.

Evidence 17Mr C S Simpson of counsel, who appeared on behalf of the appellant, relied upon the affidavit evidence of three witnesses, namely: the appellant, sworn 18 July 2012; Mr Goodwin, sworn 18 July 2012; and Ms Gail Petersen, sworn 20 July 2012. The appellant and Mr Goodwin were required for cross-examination. 18Mr T M Ower of counsel, who appeared on behalf of the respondent, tendered a bundle of documents entitled "Respondent's Tender Folder". That bundle contained copies of correspondence, much of which was common to the documents annexed to the affidavits of the witnesses for the appellant. Additionally, the bundle contained copies of two advices prepared by Mr Ower for State Super, dated 3 November 2010 and 23 May 2011, regarding the appellant's decision to dispute the determination reached by the STC on 17 June 2010 that the Trenches letter of 20 April 2010 did not constitute a valid election. A copy of the advice dated 3 November 2010 was also annexed to the appellant's affidavit.

Issues 19At the original hearing of the matter, on 6 November 2012, Mr Simpson identified four issues which were related to the resolution of the ultimate question as to whether a valid election had been made. These questions were developed by counsel for the appellant having regard to the communications within and by the STC prior to the hearing of this appeal and were as follows: (1)Did the election have to be signed by Mrs Hildebrand or Mr Hildebrand (under the Power of Attorney)? (2)Did Trenches have actual authority to write the letter of 20 April 2010 on behalf of Mrs Hildebrand? (3)Was the election ineffective because of ambiguity or uncertainty as to whether it was a commutation in respect of the whole of the pension entitlement? (4)Did the election "take effect" before the death of Mrs Hildebrand, notwithstanding the respondent had not satisfied itself of her entitlement to a pension prior to her death, or of Trenches' authority to write the letter of 20 April 2010? 20During the course of that hearing, Mr Ower stipulated that the Court would not be required to resolve the first stated issue and accepted that the remainder of the aforementioned issues represented the questions requiring resolution in order to determine the question of the validity of any election (although the fourth issue did morph into subsidiary questions by the end of submissions). 21The Court reserved the matter for judgment on 6 November 2012. However, on 4 February 2013 the Court resumed the matter in order to raise an issue with the parties. That issue concerned whether or not the advices of Mr Ower, contained, as mentioned, in the bundle of documents tendered by the respondent, were to be considered by the Court in determining the matter. That issue was raised for the following reasons: (1)An examination of the record of proceedings in the course of preparing this judgment left some doubt as to the intention of the respondent in this respect; (2)The advices raised issues which were not ventilated in the oral submissions of Mr Ower (it can be noted that Mr Ower did not file written submissions and that a summary of his oral submissions from the original hearing of the matter are set out later in this judgment); and (3)A closer reading revealed the advices may traverse issues not contemplated in or by the aforementioned issues raised on the appeal. 22When the matter was recalled, and the Court outlined the issue, leave was sought by Mr Ower to file supplementary submissions dealing with matters dealt with in the advices (but not the subject of oral submissions). That application was initially opposed by Mr Simpson, but he later withdrew his objection. 23In the result, the Court made the following directions: (1)The respondent shall file and serve the supplementary submissions it seeks to make, which submissions should incorporate grounds in support of the grant of leave for the Court to receive the same within 21 days from the date of the directions hearing; (2)The appellant shall file and serve written submissions addressing the grounds for opposing the granting of leave for the Court to receive the supplementary submissions of the respondent (if the appellant continued at that stage to oppose that course). The submissions should incorporate any submissions the appellant wishes to make in reply. (3)Upon receipt of the supplementary submissions from both parties, the Court shall make a procedural ruling as to their receipt (or otherwise) and notify the parties of that result (then further reserving judgment). 24The Court sent further correspondence to counsel the following day directing that any supplementary submissions provided by the parties should be focussed upon the issue/s, raised on the appeal (being issues two to four of those listed at [19] of this judgment). 25The further written submissions of the respondent were received by the Court on 18 February 2013. Those of the appellant were received on 11 March 2013. The Court determined that, having regard to the consent of the appellant, and in the interests of justice, the supplementary submissions should be considered. 26Based upon the development of the proceedings in this fashion, the Court shall resolve, seriatim, issues two to four raised on the appeal, after first attending to the factual background and submissions of the parties.

Factual Background 27The factual underpinnings for the resolution of the issues in this matter were largely uncontroversial and were derived from uncontentious documentary material. In the following summary of the factual background to this matter, the factual matters which were disputed shall be noted for the purpose of later adjudication. 28As earlier mentioned, on 5 November 1998, Mrs Hildebrand executed a general Power of Attorney appointing the appellant as her attorney. The appointment was expressed to be enduring, despite any subsequent loss of capacity of the grantor. 29On 3 October 2009, Mrs Hildebrand suffered a stroke and went to hospital for treatment. After that time, the appellant began to exercise the powers contained within the Power of Attorney. 30On 1 February 2010, the appellant telephoned the STC and advised of the death of his father (less than two weeks earlier), that Mrs Hildebrand was the surviving spouse and that he held an enduring Power of Attorney for her. 31On the same day, the STC wrote to Mrs Hildebrand advising her of her potential entitlements. 32On 18 February 2010, Mr Goodwin wrote to the respondent stating that the firm acted for the estate of Mr Leslie Hildebrand and inquiring as to the details of the amount of the pension entitlement payable to Mrs Hildebrand and the amount of "the lump sum payment". A certified copy of the will of Mr Leslie Hildebrand was enclosed, together with an authority signed by the appellant to provide information to Trenches. 33On 24 February 2010, the STC wrote a letter to Mrs Hildebrand via Trenches describing the eligibility criteria for any spouse pension benefit. The following paragraph appeared toward the beginning of the letter: We are writing to you in regard to the potential benefit entitlement from the State Superannuation Scheme (SSS) upon the death of Mr Leslie George Hildebrand. Prior to his death, Mr Leslie George Hildebrand was in receipt of a payment of a superannuation pension from SSS. The pension entitlement ended at the date of death and payment of the pension will now cease. However, under the legislation governing SSS, the Superannuation Act 1916 (NSW), upon the death of a Scheme pensioner there is a reversionary pension benefit entitlement for an eligible spouse or de facto partner of the deceased pensioner. 34The letter went on to set out, in the following terms, the documents required by Pillar in order to determine any entitlement of Mrs Hildebrand to her late husband's pension: In order for Pillar to make a determination about whether or not you are an eligible spouse, for the purposes of reversionary pension benefit entitlement from SSS upon the death of Mr Leslie George Hildebrand, the following documents are required to be provided:

a certified copy of the Death Certificate of the deceased;
a certified copy of the Marriage Certificate of the deceased and yourself;
a statutory declaration from yourself stating whether the marriage between the deceased and yourself was still legally subsisting and had not been dissolved at the date of his death and whether you were living in the same residence with the deceased at that time, and including any other relevant information.
if you were not living in the same residence with the deceased at the time of his death - a statutory declaration concerning why you were not living in the same residence with the deceased at that time and stating whether the deceased was living in a de facto relationship at the date of his death;
a certified copy of a document or documents providing evidence of the deceased's age and identity [please see the enclosed Proof of Identity Requirements] including, if applicable, any evidence of a change of name if the name on the document(s) is different to the name on the Death Certificate;
a certified copy of a document or documents providing evidence of your age and identity [please see the enclosed Proof of Identity Requirements] including, if applicable, any evidence of a change of name if the name on the document(s) is different to your current name; and
the enclosed Privacy Consent from, completed by you. 35In addition, toward the end of the letter, the following entry appeared: An eligible spouse or de facto partner to whom it is decided that a reversionary pension benefit is payable from SSS may apply to commute any part or all of their SSS pension benefit to a lump sum. 36There was also a further reference to conditions attaching upon such an application for commutation. The conditions, which referred to the time limits within which any application to commute must be made, provided the following: An application must be made: at any time in the 6 months immediately before or after the applicant's 55th birthday; or if the pension commencement date is after date the applicant turns 55, at any time in the 6 months immediately after the pension commencement date; or if no application to commute has previously been made, at any time in the 6 months immediately before or after the applicant's 60th birthday. 37It may be noted that there was no dispute in the present matter that the correspondence of 20 April 2010 was sent within the time limits set out above. At issue was, as noted, whether that correspondence resulted in a valid election being made. 38On 2 March 2010, the STC sent Trenches correspondence which set out the estimated benefit entitlements (for both pension and a lump sum) for Mrs Hildebrand. In relation to the lump sum, the correspondence stated: Lump Sum Your spouse can choose to change some or the entire SSS spouse pension for a lump sum. As at 2 March 2010 the lump sum is estimated at $91,750.46. However, if your spouse decides to do this, they have to tell us within six months of the date of death. 39On 24 September 2010, Mr Goodwin sent correspondence to the STC which noted that: "We do not have a copy of your letter of 2 March 2010 and should be pleased if you would let us have a copy of the same as soon as possible". A copy of the letter was duly forwarded by the STC to Trenches on 28 September 2010. It can be presently noted that an issue arose between the parties as to whether, nevertheless, Trenches had, in fact, received the original letter of 2 March 2010. A related issue was whether the appellant had seen the letter of 2 March 2010 prior to the writing, by Mr Goodwin, of the Trenches letter of 20 April 2010. Those factual issues formed part of the contest between the parties in relation to the second issue raised on the appeal (that is, whether Trenches had actual authority to send the letter of 20 April 2010), and will be dealt with below in the course of considering that issue. 40As earlier noted, Ms Petersen was not required for cross-examination and her affidavit became part of the evidence in the proceedings without objection. Ms Petersen deposed that she was employed as a clerk with Trenches and had retired from that position in 2011. She acted in respect of the estate of the late Mr Hildebrand. On 5 March 2010, she telephoned the STC to ascertain the amounts that would be paid by way of pension or lump sum and was advised that estimates had been forwarded by mail. This inquiry was in relation to entitlements for Mrs Hildebrand. (Later, on 19 April 2010, Ms Petersen ascertained from the STC the documentation required to support any application in that respect.) 41In his affidavit, the appellant deposed that he had a telephone conversation with Mr Goodwin and Ms Petersen of Trenches on a date between the correspondence of 2 March and the key correspondence to which the Court has earlier averted (of 20 April). That conversation was said to have occurred on or about 19 April 2010. The appellant deposed that he gave instructions that "they should elect on behalf of my mother to take a lump sum payment from State Super". He also deposed that "I gave them that instruction as I believed that would be of more benefit to my mother at her age than a continuing pension". 42Annexed to Ms Petersen's affidavit was a file note of a conversation she had with "State Super" on 19 April 2010. The note made no mention of the instructions which the appellant stated he gave on that day regarding the taking of a lump sum payment (the note essentially concerned documents required to be produced by the appellant to the STC). 43A further issue of contention arose between the parties in relation to the telephone conversation said to have occurred between the appellant and Mr Goodwin and Ms Petersen on 19 April 2010. That issue concerned whether, in fact, the appellant gave instructions to his solicitors to communicate an election to commute his mother's pension entitlements to a lump sum. This factual issue also formed part of the contest between the parties in relation to the second issue raised on the appeal and will, again, be dealt with below in the course of considering that issue. 44The letter from Mr Goodwin to the STC of 20 April enclosed a series of documents. Amongst those documents was a Statutory Declaration signed by the appellant in which he stated "I am the Attorney for Elma Margaret Hildebrand pursuant to Power of Attorney dated 5 November 1998", and a copy of the Power of Attorney appointing the appellant as Mrs Hildebrand's attorney. 45Trenches sent another letter to the STC on 22 April 2010 referring to its earlier letter of 20 April and enclosing a "Privacy Consent form". As earlier noted, Mrs Hildebrand died on 26 April 2010. The Trenches letter of 22 April was received by Pillar on 27 April 2010. The STC wrote to Mrs Hildebrand, via Trenches, on 29 April 2010 asking that she contact "the Customer Service Centre". 46On 4 May 2010, Ms Petersen had a conversation with the STC in which she was advised of the documentation then required by the STC including documentation identifying Mrs Hildebrand and identifying the appellant. 47On 10 May 2010, Trenches wrote to the STC referring to the letter of 29 April and a telephone conversation. The correspondence enclosed forms of identification for the executor and Mrs Hildebrand. 48The STC wrote to Mrs Hildebrand via Trenches on 19 May 2010 advising that it had determined that she was entitled to a pension. The letter advised: "The amount of the pension benefit entitlement payable to you is $989.33 (gross) per fortnight, effective from 21 January 2010" (that is, from the day after the date of her husband's death). The correspondence also advised that she was able to apply to commute any part or all of the pension to a lump sum and enclosed an application form to be filled out by Mrs Hildebrand should she choose to do so. The letter again stated the conditions attaching to elections to commute which had been referred to in earlier correspondence. 49On 28 May 2010, Mr Goodwin wrote to the STC advising that Mrs Hildebrand had passed away, that forms regarding an application to commute sent on 19 May could no longer be signed under "her Power of Attorney" and that "an election was clearly made and we believe that it would be appropriate for Mrs Hildebrand's executor to complete the forms in respect of the claim". Earlier in that same correspondence, Mr Goodwin stated that, on 20 April 2010, Trenches had written to the STC "making an election to take the lump sum payment". 50A bundle of documents was tendered by the respondent. In that bundle there appeared, next in chronological order, some internal email communications followed by correspondence to Mr Goodwin from Pillar, dated 17 June 2010. In the correspondence, the following statement was made: Your letter of 20 April 2010, received by Pillar on 22 April 2010, did state that Mrs Hildebrand wanted to take a lump sum payment, which is an indication that she or her attorney wanted to commute, but this did not constitute a valid election in writing (or even signed) by Mrs Hildebrand or her attorney to commute part or all of her pension to a lump sum. The letter was signed by or for you on your firm's letterhead and nothing enclosed with the letter constitutes a valid election to commute by Mrs Hildebrand or her attorney. 51On 5 July 2010, Trenches wrote to the STC indicating that the conclusion reached by it on 17 June was disputed. Certain interlocutory processes followed, including the STC seeking advice of counsel. In one piece of correspondence, dated 30 August 2010, between the STC and Trenches, the following was stated by the STC: Pillar wrote to you again on 2 March 2010 and advised of the benefits payable from SSS to an eligible spouse. The pension and lump sum amounts were quoted. 52On 24 September 2010, Mr Goodwin wrote to the Manager, Disputes and Appeals of the STC, stating as follows: We do not have a copy of your letter of 2 March 2010 and should be pleased if you would let us have a copy of the same as soon as possible. 53On 7 December 2011, the STC wrote to Trenches advising that the Disputes Committee had determined the dispute by confirming the decision, as earlier mentioned, that no valid election to commute the pension was made. That letter stated, relevantly, the following: At its meeting of 7 December 2011, the Corporation's Disputes Committee determined the dispute pursuant to section 67 of the Superannuation Administration Act 1996 by confirming the delegate's decision that no valid election to commute Elma Hildebrand's pension was made by Elma or her attorney, John Hildebrand, in accordance with section 91 of the Superannuation Act 1916. 54It is relevant to note, at this juncture, that the STC adopted a set of "Scheme Policies" with respect to the implementation of all STC schemes, including the policy entitled "SSS3 - Timeframes under s 91 relating to elections to commute pensions (sections 21C and 21D)". The terms of that policy will be set out in the summary of the appellant's submissions below.

Submissions for the Appellant 55The original submissions of the appellant, received orally and in writing at the hearing of the matter on 6 November 2012, were, in summary, as follows:

Issue two: Did Trenches have actual authority to write the letter of 20 April 2010 on behalf of Mrs Hildebrand? (1)The appellant made several factual contentions upon which, relevantly, his submissions, in this respect, were premised: (i)On 5 November 1998, Mrs Hildebrand had executed a general Power of Attorney appointing her son, the appellant, as her attorney. The appointment was expressed to be enduring, despite subsequent loss of capacity of Mrs Hildebrand; (ii)On 1 February 2010, the appellant telephoned Pillar and advised it of the death of his father; (iii)On the same date, a letter was sent from Pillar to Mrs Hildebrand, care of the appellant, setting out her potential entitlement to her husband's pension and what documents were required to satisfy Pillar as to that entitlement. It also contained information on commuting the pension to a lump sum and the time by which that application had to be made (forms were enclosed); (iv)On 18 February 2010, Trenches sent a letter to the respondent which stated: "We [being Trenches] act for the executor of the Will" of the deceased Mr Hildebrand. It went on to state: "We understand that there is a potential benefit entitlement to an eligible spouse of the deceased", and asked for the details of both the amount of the pension that would be paid and the amount of the lump sum payment. It enclosed a copy of the Will and an authority signed by the executor (being the appellant); (v)On 2 March 2010, the respondent sent a letter addressed to Mr Goodwin, of Trenches. The letter set out, again, some basic information on entitlements. It contained two important paragraphs. The first, under the subheading "SSS Spouse Pension" set out the amount of the pension. The second, under the heading "Lump Sum", read as follows: "Your spouse can choose to exchange some or the entire SSS Spouse Pension for a lump sum. As at 2 March 2010 the lump sum is estimated at $91,750.46"; (vi)The appellant had a telephone conversation with Mr Goodwin and/or Ms Petersen of Trenches on or about 19 April 2010. The appellant instructed them that they should elect, on behalf of Mrs Hildebrand, to take a lump sum payment from the respondent in respect of the whole of the pension (as opposed to a partial commutation). At that point in time, the appellant had seen the letter of 2 March 2010 and discussed it with his mother; (vii)On 20 April 2010, Trenches sent a letter to the respondent which enclosed various documents, including a certified copy of the appellant's Power of Attorney (which had been requested by the respondent previously in a letter of 24 February 2010). It also contained the following statement: "Mrs Hildebrand wishes to take a lump sum payment". That letter was sent by express post and bears (on the respondent's copy) the date stamp 22 April 2010 as having been received by Pillar; (viii)There was some subsequent correspondence between the parties, including the forwarding of a privacy consent form from Trenches to the respondent (which document had been omitted from the earlier correspondence of 20 April 2010), a request by the respondent for further documentation and, ultimately, correspondence informing the respondent of the death of Mrs Hildebrand on 26 April 2010. (2)There was no dispute between the parties that, upon her husband's death in January 2010, Mrs Hildebrand became entitled to a pension and was entitled to exercise her right to commute it to a lump sum. Essentially, the issue in dispute between the parties was whether the letter of 20 April 2010 written by Trenches, which contained a statement that "Mrs Hildebrand wishes to take a lump sum payment" constituted a valid election in writing to commute the pension for the purposes of ss 21C and 91 of the Act; (3)An issue on the appeal is whether Trenches had actual authority to write the letter of 20 April 2010 on behalf of Mrs Hildebrand; (4)The appellant had, by virtue of the general Power of Attorney granted to him by his mother, the authority to do anything an attorney could lawfully be authorised to do, including to make the election for his mother. The question is whether the appellant could validly instruct Trenches to make an election for Mrs Hildebrand that he himself was authorised to make. The appellant submitted that an answer to that question in the affirmative could be reached for either of two reasons; (5)First, in any contract of agency or Power of Attorney there is an implied authority for the attorney to sub-delegate in certain circumstances (indeed, when someone grants someone else a Power of Attorney, it is expected that there will be certain circumstances in which the attorney will instruct someone else to act, for example, the instructing of a solicitor to act on behalf of the grantor of the power). The authority to delegate in the Power of Attorney can be implied where, from the conduct of the parties to the original contract of agency, it can reasonably be presumed that the parties to the contract of agency originally intended that such authority should exist (in reliance on De Bussche v Alt (1878) 8 Ch 286 at 310); (6)It is reasonable to presume a Power of Attorney of the kind granted to the appellant impliedly authorised delegation of certain functions to a solicitor to allow that solicitor to act for the grantor of that power, Mrs Hildebrand. If this was not the case, a solicitor acting for a person on instructions from the person's attorney would have no authority to engage in the correspondence, act and appear in litigation or give undertakings on behalf of the person in relation to, for example, a conveyance or any form of commercial dealing. It must be concluded that the appellant had implied authority to instruct Trenches in relation to Mrs Hildebrand's pension dealings, including the authority to instruct Trenches to write the letter of 20 April 2010. It is clearly evident, from the affidavit evidence of the appellant, that Trenches wrote the letter of 20 April 2010 on his instructions and with express and actual authority; (7)The submission of the respondent that it did not believe Trenches handled the matter on behalf of the appellant cannot be sustained when considered in light of previous correspondence sent from the respondent to Mrs Hildebrand, care of Trenches. Implicit in that must be an understanding on the part of the respondent that Trenches had some authority or role in relation to Mrs Hildebrand; (8)Secondly, an agent (in this case the appellant) does not require express (or, indeed, implied) authority to appoint another to perform purely "ministerial" acts on behalf of the principal. The sending of the letter of 20 April 2010 from Trenches to the STC, and in particular the sentence therein stating that "Mrs Hildebrand wishes to take a lump sum payment", was a purely ministerial act, done specifically on the express instruction of the appellant. Trenches was, in the circumstances, no more than his instrument in carrying out that simple function upon his instructions. The letter of 20 April 2010 was, therefore, just as effective an election as if the appellant had signed and sent it himself; (9)If it is found that Trenches did have actual authority to write the letter of 20 April 2010, then it follows that the election was valid. The question of what the respondent was aware of at that time becomes, in those circumstances, irrelevant.

Issue three: Was the election ineffective because of ambiguity or uncertainty as to whether it was a commutation in respect of the whole or part only of the pension entitlement? (10)Section 21C(1) of the Act gives a right to elect to take part only of the pension as a lump sum; (11)The words used in the letter of 20 April 2010 (that is, the words "Mrs Hildebrand wishes to take a lump sum payment"), both when considered in terms of their ordinary meaning and in the context they were written, could have had no reasonable meaning other than being in respect of a commutation of the whole of Mrs Hildebrand's entitlement; (12)With respect to the ordinary meaning and usage of the language, where a person has a legal right that can be exercised in whole or part (as was the case with Mrs Hildebrand given the provision of s 21C(1) of the Act), and purports to exercise that right, a failure to specify that it is exercised in part only must mean that it is in respect of the whole. The situation in the present case is analogous to a situation where a creditor, owed a debt repayable in whole or part on demand, writes a letter to the debtor stating "I hereby demand repayment of your debt". In not specifying it is a demand in respect of part only of the debt, it must take effect as a demand in respect of the whole. Similarly, in the circumstances of the present matter, by Trenches not specifying a part sum, the election must be taken to be in respect of the whole; (13)With respect to the context in which the words were written, in particular in the context of prior correspondence between the parties, there could be no doubt that the "lump sum" referred to in the letter of 20 April 2010 was the lump sum calculated on a commutation of the whole of the pension. Trenches had written to the STC, on 18 February 2010, asking for the amount of the lump sum payment in respect of the whole of the pension. The STC had advised this in its letter of 2 March 2010. Mr Hildebrand deposed, in cross-examination, that he had seen the letter of 2 March 2010 and discussed it with his mother, and had instructed Trenches to write the letter of 20 April 2010 on that basis. (The only occasion on which the estimated value of the lump sum was set out was in the 2 March letter. Given the appellant was aware of that figure, having spoken about it with his mother before instructing Trenches on or around 19 April 2010, it follows that he must have seen the 2 March letter prior to that date.) In those circumstances, there could be no reasonable uncertainty that the appellant had seen the letter of 2 March 2010 prior to instructing Trenches on 19 April 2010 and that the letter of 20 April 2010 was referring to the lump sum in respect of the whole; (14)There is nothing to be read into the fact that, as pointed out by the respondent, the letter of 20 April 2010 referred to an earlier letter sent by the respondent on 24 February 2010 but did not refer to the letter sent by the respondent on 2 March 2010 (the latter of which was the correspondence which set out the estimated amount of the lump sum of the pension taken as a whole). The letter of 20 April 2010 referred to the letter of 24 February 2010 simply because it enclosed documents which were requested in the earlier letter. As to why the letter of 20 April 2010 did not refer to the letter of 2 March 2010, this can be explained by the fact that the amount of the lump sum set out in the 2 March 2010 letter was only an estimate. The appellant did not know the actual amount of the lump sum when he instructed Trenches to make the election on 19 April 2010; (15)In any event, the alleged deficiency in the election was not relied on by the STC as a ground for its original decision to reject its validity. The sole ground, as advised in the letter of 17 June 2010, appeared to be the alleged lack of authority of Trenches to write the letter of 20 April. The alleged ambiguity in the letter seems to have first been raised in the advice of Mr Ower of 3 November 2010. This is relevant to the extent that the question (that is, whether or not the letter of 20 April 2010 referred to a partial or total commutation) was not flagged as an issue by the people who read the letter on behalf of the respondent, which people were experienced in the industry.

Issue four: Did the election "take effect" before the death of Mrs Hildebrand, notwithstanding the respondent had not satisfied itself of her entitlement to a pension prior to her death, or of Trenches' authority to write the letter of 20 April 2010? (16)An answer to this question in the affirmative can be reached for either of two reasons; (17)First, the contention that the STC should or could not determine that the election should take effect until it had satisfied itself that the election was validly made confuses the making of a valid election with the provision of proof to the STC that a valid election had been made. Section 91(1) of the Act merely requires that an election be in writing. Further, it is not disputed that Mrs Hildebrand became entitled to a pension immediately upon the death of her husband (although she subsequently needed to provide information to the STC to satisfy it of her entitlement). Upon that information being provided and the respondent satisfying itself as to the entitlements (in approximately May 2010), Mrs Hildebrand was entitled to be paid the pension from the date of her husband's death, not from the date at which she provided all the necessary information. In the same way, the appellant is entitled to have the election treated as effective from the date on which it was made (that is, the date the letter containing the election was received by the respondent, namely, 22 April 2010), not from the date on which the STC received the information necessary to satisfy it of the validity of the election. It will frequently be the case that the respondent will not be satisfied as to the validity of the entitlement until a point some time after the entitlement arises; (18)That approach is reflected in s 21E of the Act. The fact that there may be a delay (perhaps substantial) between the time at which an election to commute takes effect and the time at which the STC actually pays the lump sum to the pensioner (or his or her estate) is implicit in ss 21C(7) and 21E of the Act. Section 21E provides for the payment of interest on commuted amounts for the time between the date on which the lump sum becomes payable and the "date when it is authorised to be paid"; (19)Secondly, while it is true that s 91(1)(c) of the Act provides that elections of this kind take effect from the date determined by the STC, there had already been a determination by the STC that an election of this kind would take effect from the date of its receipt by the STC. The STC had supplied to Pillar, in an advice dated 6 January 2010, a document entitled "Scheme Policies as determined by the SAS Trustee Board". (The advice also stated that the STC had delegated to Pillar the power to implement those policies.) That document included, inter alia, policies in relation to the SSS including the policy entitled "SSS3 - Timeframes under section 91 relating to elections to commute pensions (sections 21C and 21D)". Item A of SSS3 (headed "Date of effect of a commutation election") provided the following: (a) Subject to the legislation and where paragraph (b) does not apply, the date of effect of the election shall be the latest of: (i) date application is received by the Trustee or administrator; or (ii) date member attains age 55, or if a member is a breakdown pensioner, age 60; or (iii) date of pension emergence; or (iv) date nominated by the member. (b) In respect of a commutation made by a spouse pensioner under s 21C(4) and whose election has been accepted under Item I of this Policy SSS3, the date of effect of the election shall be a date that is no later than a date within the time frame specified under paragraph (a) of item I of this Policy SSS3. (20)In the circumstances, where Mrs Hildebrand had attained the requisite age and the pension was already payable and the member had not nominated a later date for commutation, the date the election should have taken effect was the date it was received by the Trustee or the administrator. The determination said nothing about the Trustee or administrator first needing to be satisfied about the entitlement before it could take effect, or about reserving any discretion to the Trustee or administrator to have the election take effect from a date later than the date of its receipt. The election was, by virtue of the policy of the STC, if valid, effective from its date of receipt by the respondent, being 22 April 2010, notwithstanding it was not for some time after that date and after the death of Mrs Hildebrand that the STC was (or should have been) satisfied as to the validity of the election; (21)There was no discretion in this case for the respondent to defer the taking effect of the election because it was not satisfied of the right to make the election; (22)Further, and again, this was not a ground which was relied upon by the STC for its original decision to reject the election.

Submissions for the Respondent 56The original submissions of the respondent, received orally on 6 November 2012, are summarised below. 57Proceedings under s 88 of the Act consist of, it was submitted, a hearing de novo in which the Court places itself "in the shoes" of the STC. 58In broad terms, the STC advanced three contentions correlating with the aforementioned issues: (1)The documentary and other evidence in the proceedings warranted the conclusion that no valid election was made in or by the correspondence of 20 April 2010 because that correspondence did not constitute an actual election to commute Mrs Hildebrand's pension. At best, the correspondence contained an intention to make an election. The basis for this submission was that the author of the correspondence did not have authority to make that election; (2)No valid election was made because the communication contained within the letter of 20 April 2010 did not express, with sufficient clarity and certainty, that an election was being made to fully commute the pension; (3)Any commutation could not take effect until the date that the STC determined such commutation. Even if actual authority to make an election was proven, there was nothing on the face of the correspondence of 20 April 2010 which would have or could have allowed the STC to make such a determination either at all or before the death of Mrs Hildebrand. 59Each such contention was predicated upon the basis that it may be inferred from the terms of the Act that an administrative process needed to be undertaken which, at its base, for present purposes, required proof of an election. It was submitted that "the election does not happen until those procedural requirements are met from a practical point of view". 60In support of the first of these contentions, the STC relied upon a submission that no instruction had been given to Trenches to communicate an election prior to the correspondence forwarded by Mr Goodwin on 20 April 2010. In particular, communications between the appellant and Mr Goodwin or Ms Petersen, to the extent they occurred on 19 April 2010, did not represent instructions which permitted a valid election to have been made on the following day to commute any pension entitlement held by Mrs Hildebrand. As earlier noted, the solicitors for the appellant were, at its highest, in a position to evince an intention by their letter of 20 April 2010. 61The STC's first contention was supported by reference to a number of parts of the evidence, as follows: (1)The file note taken by Ms Petersen of her communication with the STC on 19 April 2010 made no mention of her or her firm having received instructions, at that stage, to make an election to commute. (2)Even accepting the appellant's submissions as to entitlements, the letter of 20 April was inconclusive as to what it conveyed. No pension entitlement had been conferred upon the appellant by 20 April 2010. The letter of 20 April related to earlier correspondence of 24 February 2010. That correspondence referred to the prospect of a partial or full commutation. Even if the Court were to infer that the letter of 20 April 2010 resulted in an actual election for a commutation, it could not be concluded that the correspondence made a clear election between a whole or partial commutation. The letter of 24 February gave an option to the appellant to choose between a partial and full commutation. That issue was not addressed in the letter of 20 April, thereby demonstrating the letter's inconclusiveness and lack of clarity with respect to any election made. (3)The communication of any election was made by Mr Goodwin as the solicitor. There was no reference to "Mrs Hildebrand's wishes being affected by [a] Power of Attorney". The reference to an authority signed by the executor accompanying the correspondence is not representative of a Power of Attorney. A Power of Attorney was enclosed with the correspondence but there was no reference to Mrs Hildebrand's wishes being affected by that Power of Attorney. (4)The Privacy Consent form signed on 22 April was not received until 27 April, after Mrs Hildebrand's death. (5)The STC letter of 2 March 2010 was not received by Trenches until 28 September 2010. This further demonstrated the uncertainty in the Trenches' communication of 20 April. The absence of receipt of the 2 March letter by Trenches must result in the conclusion that the appellant did not know of the actual lump sum payable in the event of a commutation (that is only communicated by the 2 March 2010 correspondence). That is reflected by the fact that no amount of that kind was referred to in the letter of 20 April 2010. 62The appellant's contentions as to uncertainty or lack of clarity of the letter dated 20 April overlap with its submissions as to the first contention concerning the absence of an actual election. 63In relation to the third element of the STC's submissions, Mr Ower contended that s 21C(6) was the nub of whether there had been an effective election or not. That provision conveyed a legislative intention that, even where an election was made, it may be "deemed to be lifted if the person dies". The purpose of this provision is to protect the Superannuation Fund. 64Mr Ower submitted, in that respect, that "when one looks at s 21C there is a difference between when an election is made and when an election takes effect". That may be gleaned from the provisions of s 21C(6)(a). That provision envisages that an election may be made but not take effect due to the death of the elector. 65It was further contended that the provisions of ss 21C(6)(b) and 21C(7) do not assist the appellant. Whilst the provisions of s 21C(7) do provide that, where an election for a commutation has been made and taken effect prior to the death of the person who made the election (being a person entitled under the SSS) the lump sum may be paid to the person or representative of that person, this does not resolve the question as to when the election took effect. Section 91 does not assist in the resolution of the question, as the election made under s 21C is of a different character. 66It was contended that s 21C of the Act is notably different to the provisions of s 91(1)(c) when attention is paid to "elections, choices and applications". 67It was accepted that, in relation to s 91(1)(c), the STC had a discretion to determine the date on which an election under s 21C took effect. That discretion was open-ended, allowing for the time it may have taken for the STC to satisfy itself that an election had been made. Further, that discretion was constrained by the duties and functions conferred on the STC under the SA Act. 68In this respect, the Court should pay particular attention to the provisions of ss 50 and 51 of the SA Act. Section 50 sets out the principal functions of the STC. Section 51 sets out particular duties relating to those functions. Those provisions require that the STC must have regard to "future liabilities of STC funds" and to exercise its functions to ensure the best interests of persons entitled to receive funds under the SSS. This latter consideration involves a 'balancing act'. These provisions need to be taken into account in any exercise of discretion under s 91 of the Act. 69Mr Ower conceded that, in the event of a valid election for commutation being made before the death of an elector, but any determination of such an election by the respondent being reached after the pensioner is deceased, it would be an improper exercise of the discretion residing in the respondent under s 91(1)(c) to determine that the election would take effect after the death of the pensioner so as to, effectively, cause s 21C(6) to operate, thereby depriving the pensioner's estate of the benefit of the provisions of s 21C(7).

Supplementary Submissions 70Given the circumstances in which the supplementary submissions emerged, the respondent's supplementary submissions should appear first.

Supplementary Submissions for the Respondent 71The supplementary submissions of the respondent, filed 18 February 2013, were accompanied by a preamble which, consistent with the direction given by the Court in correspondence sent to the parties following the directions hearing of 4 February 2013, indicated that those submissions were intended to be restricted to issues two to four of the issues on appeal identified by the appellant in its original written submissions. In this respect, the respondent's supplementary submissions were framed in a way different to its original submissions. Importantly, it should be noted, it is also plain that the respondent's supplementary submissions were to the exclusion of the two advices of Mr Ower referred to earlier (such that any submissions relied upon, in that respect, were to be found in the supplementary submissions). So much is clear given that, at the 4 February 2013 directions hearing - the purpose of which was, centrally, to ascertain whether those advices were to be considered by the Court in determining this matter - the respondent adopted the course of seeking leave, in lieu of putting those advices forward as submissions, to file supplementary submissions. Further, the preamble to those supplementary submissions, as mentioned, makes clear that the respondent confined its submissions to its original oral contentions and the supplementary submissions. 72The supplementary submissions of the respondent were as follows (footnotes omitted): These submissions are made following the mention of this matter before His Honour Vice President Walton on 5 February 2013. They are intended to supplement the previous oral submissions made on 6 November 2012 and are restricted to three issues (b, c, and d) identified by the appellant in his written submissions. References in square brackets [ ] correspond to paragraph numbers of the appellant's written submissions. b) Did TMC have authority to write the letter of 20 April 2010 on behalf of Mrs. Hildebrand? 1. The appellant contends that the source of TMC's authority was the specific instruction of Mr. John Hildebrand pursuant to the power of attorney he held to act on behalf of Mrs. Hildebrand [41] [being a reference to the appellant's original submissions]. As previously submitted, the letter of 20 April does not explain on whose instructions or authority the statement: "Mrs. Hildebrand wishes to take a lump sum", was made. 2. Although a copy of the power of attorney was enclosed with the letter, it was not expressed to be an "irrevocable" power within the meaning of s.160 of the Conveyancing Act, 1919 (now repealed but saved for the purposes of powers of attorney executed before 2003 by virtue of s.6 of the Powers of Attorney Act, 2003). Accordingly, the respondent could not have safely assumed, as at 20 April 2010, that the power of attorney remained valid or that TMC was authorised to make the purported election to commute. 3. If the respondent was not in a position to be satisfied that the purported election was authorised before Mrs. Hildebrand's demise, it could not have "taken effect" before that time. c) Was the election ineffective because of ambiguity or uncertainty as to whether it was a commutation in respect of the whole or part only of the pension entitlement? 4. The letter of 20 April 2010 was expressly responding to a letter from the respondent dated 24 February 2010. That letter sought information upon which the respondent could determine Mr. Hildebrand's entitlement to the reversionary pension. On the last page reference was made to the option to apply to commute "any part or all of their SSS pension benefit to a lump sum". The purported election did not specify whether part or all of the benefit was sought to be commuted. Without clarification of this aspect, the purported election could not "take effect". 5. The appellant's reliance [54] upon the "estimate" contained in the respondent's letter of 2 March 2010 is, with respect, misplaced. That correspondence also differentiated between taking "some or the entire SSS pension as a lump sum". 6. Assuming the evidence of Mr. John Hildebrand and Mr. John Goodwin is accepted and the Court was to find that the letter of 2 March 2010 was received by the appellant around that time, the purported election fails to specify whether the "lump sum" was to represent all or only some of the pension payable. Further, the lack of any reference within TMC's letter of 20 April 2010 to the "estimate" contained in the respondent's letter dated 2 March 2010 does not assist in curing this uncertainty. 7. This uncertainty is another reason why the purported election could not have "taken effect" upon its receipt by the respondent on 22 April 2010. d) Must the respondent have satisfied itself as to validity before the election could take effect? 8. In my submission, the answer to this question is clearly, yes. Without unnecessarily repeating my oral submissions on this point, s.21C (6) of the Act differentiates between the time an election to commute is made and the time an election takes effect. To give the words of the section their normal meaning, where the death of the beneficiary occurs at a time between those two dates, the election is "deemed to be revoked". It follows that for an election to "take effect" something more is required than the "making" of the election. 9. Until there is sufficient information upon which the entitlement to, and the amount of, commutation can be determined by the respondent, a purported election cannot take effect. The appellant relies upon s.91 (1) as to the constituents of a valid election and argues that it would be wrong to conflate the time for making an election with the provision of supporting evidence of the validity of an election [60-61]. With respect, that argument does not assist in the construction of s.21C (6). Section 21C (6) must have work to do. It would be a meaningless provision if an ambiguous notice of an election made by a potentially unauthorised source was allowed to take effect on the basis of evidence provided to the respondent after the beneficiary"s demise. 10. The information provided to the respondent was insufficient and uncertain prior to the death of Mrs. Hildebrand. At that time, the respondent could not have given "effect" to the purported election under s. 21C, even if it wanted to. It must be remembered that the respondent determined in May 2010 that a reversionary pension was payable to Mrs. Hildebrand from 21 January 2010 but that this determination was made after her death (a circumstance of which the respondent was unaware at the time). 11. The appellant submitted orally that backdating of Mrs. Hildebrand's pension to the date of her husband's death lends support to the argument that the commutation can be likewise "backdated" once the respondent becomes satisfied subsequently that a valid election had been made. Moreover, it was argued that the entitlement to interest on commutation sums under s.21E was consistent with some time lag being envisaged by the legislature between "taking effect" and the authorisation of payment. However, this argument ignores the essential character of what is being commuted under s.21C. It would be incongruous to allow an election to commute a pension entitlement to "take effect" before the determination of the underlying pension right itself. Once again, a natural reading of the words in s.21C (6) would prevent this outcome.

Supplementary Submissions for the Appellant 73The supplementary submissions of the appellant were received on 11 March 2013. Those submissions began with an introductory section in which the appellant indicated, as earlier mentioned, that he no longer objected (as was his position at the 4 February 2012 directions hearing) to the Court receiving the supplementary submissions of the respondent and that he wished to make supplementary submissions in reply. The supplementary submissions in reply were organised under three headings which corresponded to the three issues, being issues numbered two to four, raised on the appeal which, again, was consistent with the direction given by the Court following the 4 February 2013 direction hearing. 74Much of the content of the appellant's supplementary submissions re-stated matters already raised in its original written and oral submissions. The supplementary submissions, insofar as they related to issues not previously raised by the appellant (noting that, in regards to issue three, the appellant relied upon his original submissions), are summarised as follows:

Issue two: Did Trenches have actual authority to write the letter of 20 April 2010 on behalf of Mrs Hildebrand? (1)In considering issue two, a distinction should be drawn between whether Trenches had actual authority to write the letter, and whether or not it was necessary for the respondent to have satisfied itself of the fact of that authority before the election to commute could have taken effect; (2)The respondent's original and supplementary submissions did not (nor, in fact, could they) squarely challenge the evidence of the appellant in respect of the issue of actual authority: (a)Mr Goodwin's evidence as to Mrs Hildebrand's capacity at the time she granted the appellant the Power of Attorney was not challenged in cross-examination nor was there any evidence to the contrary (noting that any subsequent loss of capacity would not affect the Power, given it was expressed as enduring); (b)There was no evidence to suggest the Power had been revoked at any time prior to 20 April 2010; (c)Whilst counsel for the respondent attempted to suggest, at the hearing of the matter, that, due to the lack of file note regarding the 19 April 2010 phone call, the Court may not accept the evidence of the appellant and Mr Goodwin on that issue, it was not put to either Mr Hildebrand or Mr Goodwin in cross-examination that the conversation alleged to have occurred on or before 19 April 2010 did not, in fact, occur. (3)The respondent conceded at the hearing of the matter that there was evidence that "pointed in the right direction" of there being actual authority to write the letter;

Issue four: Did the election "take effect" before the death of Mrs Hildebrand, notwithstanding the respondent had not satisfied itself of her entitlement to a pension prior to her death, or of Trenches' authority to write the letter of 20 April 2010? (4)Whilst it was accepted that there can be a difference in time between when an election is made and when it takes effect and, further, that an election under s 21C takes effect from a date determined by the respondent, the respondent's submissions, with respect to this issue, ignore that there had already been a determination made by the respondent as to the date at which elections of the kind made by Mrs Hildebrand take effect - that is, the "SSS3" policy (described in the appellant's original submissions); (5)There was no evidence or submission from the respondent that SSS3 did not apply to the appellant's case. There was no evidence that a different policy had been adopted or determination made by the respondent for the purposes of s 91(1)(c) prior to 22 April 2010 (being the undisputed date upon which the respondent received the letter of 20 April 2010); (6)By virtue of SSS3, if the letter of 20 April 2010 is found to constitute a valid election, that election took effect on the date of its receipt. In such circumstances, it was not open to the respondent to say that it had a discretion to determine that the election took effect from a date later than receipt; (7)Accordingly, the respondent's contention that it had to be satisfied as to validity before it could determine that an election had taken effect was misconceived; (8)Implicit in the respondent's submissions is the suggestion that a valid election to commute, for the purposes of s 91(1) and SSS3, must contain on its face or in accompanying documents, all the information necessary for the respondent to determine its validity. For the reasons expressed in the appellant's original written submissions, s 91(1)(c) does not require this. In addition to those reasons, it must be questioned what conceivable purpose the legislation could serve by the adoption of the interpretation of s 91(1)(c) by the respondent. At best, it might be said that the respondent's interpretation makes the administration of the fund easier by imposing a very significant incentive on pensioners to include all the necessary documentation in an election to commute. However, that interpretation would impose an enormous penalty on persons having an undoubted entitlement to a pension from the fund and who clearly seek to exercise that right but who pass away before the purely administrative steps necessary to satisfy the respondent of those matters have been taken; (9)Finally, the respondent submitted that, unless the provisions were interpreted in the way it contended for, s 21C(6) would "have no work to do". Implicit in that proposition is the assumption that the sole circumstance in which an election might take effect at a date later than its receipt is where the respondent has not yet satisfied itself as to the validity of the election. There are at least two clear examples under the legislation, however, where an election might take effect at a date later than its receipt by the respondent, namely, ss 21C(4), 21C(14) and 21C(15) (which allow an election to commute to be made before the pensioner actually retires, which pension clearly cannot take effect until the pensioner retires) and s 21C(5) (which allows a commutation to be in respect of different amounts and different dates).

Consideration 75This is an appeal under s 88 of the SA Act. An appeal to the Court under s 88 has generally been regarded as a hearing de novo: Woollard v SAS Trustee Corporation [2012] NSWIRComm 51 at [15] citing Jovic v SAS Trustee Corporation [2007] NSWIRComm 102; McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 and Morley v SAS Trustee Corporation [2007] NSWIRComm 90. 76The fundamental issue raised in these proceedings was whether or not a valid election to commute the pension entitlement held by Mrs Hildebrand to a lump sum was made by the correspondence sent by Trenches to State Super on 20 April 2010, which correspondence was date stamped as having been received by Pillar on 22 April 2010, just prior to Mrs Hildebrand's death on 26 April 2010. 77As earlier noted, the parties approached the resolution of that issue, as was reflected in the arguments canvassed at the hearing of the matter and the supplementary submissions of the parties, by means of the formulation of three questions (which derived from the four questions formulated by the appellant's counsel having regard to the exchanges between the parties prior to the hearing of this matter). Those questions were issues two to four respectively of the list referred to at [19] of this judgment and concerned, respectively, and in short hand, whether Trenches was given actual authority to make the election on behalf of Mrs Hildebrand, whether the election was sufficiently clear as to whether it referred to the whole or part only of the lump sum and whether the election took effect prior to the death of Mrs Hildebrand. I propose to deal with those issues seriatim. Before doing so, however, it is convenient to refer to some further uncontentious matters which are also relevant to the resolution of the fundamental issue vis-á-vis validity raised in these proceedings. 78First, it may be noted that there was no dispute between the parties that the appellant had been granted, by his mother, on 5 November 1998, a Power of Attorney which was expressed to be enduring, despite any subsequent loss of capacity of the grantor. (It can be presently noted that there was, however, some dispute, arising from the supplementary submissions of the respondent, as to the validity or effectiveness of that Power as at 20 April 2010 given that the Power of Attorney enclosed with the Trenches letter of that date was not expressed to be "irrevocable". That issue will be discussed below in the course of considering issue two. 79That brings this discussion to a matter which was not the subject of debate in the proceedings, but which warrants brief mention at this juncture, namely, whether, as a matter of law, Trenches, as a firm of solicitors acting on behalf of the attorney (assuming the attorney - that is, the appellant - had valid authority), may have been given authority to effect a valid election of the kind in question (irrespective, for present purposes, as to whether actual authority, as contemplated by issue two, was given by the appellant to Trenches). 80In my view, counsel for the appellant was correct in submitting that, when a grantee is granted a Power of Attorney by a grantor, it is expected that there will be circumstances in which the grantee will then instruct someone else to act in order to assist in or facilitate the exercise of that power (subject, again, to the question of validity). If that were not the case, it was submitted, a solicitor acting for a grantor on instructions from the grantor's attorney, for example, would have no authority to engage in correspondence, act and appear in litigation or give undertakings on behalf of the grantor. 81In the present case, the Power of Attorney granted to the appellant by his mother conferred, by implication, an authority, power or function upon the appellant to instruct his solicitors to communicate an election to commute his mother's pension entitlements to a lump sum (the decision to elect to commute the pension being taken by the appellant pursuant to his Power of Attorney after discussion with his mother). In so arguing, the appellant relied, as earlier noted, on the case of De Bussche, the following passage from which is relevant (at 310 - 311): ... As a general rule, no doubt, the maxim "delegatus non potest delegare" applies so as to prevent an agent from establishing the relationship of principal and agent between his own principal and a third person; but this maxim when analyzed merely imports that an agent cannot, without authority from his principal, devolve upon another obligations to the principal which he has himself undertaken to personally fulful; and that, inasmuch as confidence in the particular person employed is at the root of the contract of agency, such authority cannot be implied as an ordinary incident in the contract. But the exigencies of business do from time to time render necessary the carrying out of the instructions of a principal by a person other than the agent originally instructed for the purpose, and where that is the case, the reason of the thing requires that the rule should be relaxed, so as, on the one hand, to enable the agent to appoint what has been termed "a sub-agent" or "substitute" (the latter of which designations, although it does not exactly denote the legal relationship of the parties, we adopt for want of a better, and for the sake of brevity); and, on the other hand, to constitute, in the interests and for the protection of the principal, a direct privity of contract between him and such substitute. And we are of the opinion that an authority to the effect referred to may and should be implied where, from the conduct of the parties to the original contract of agency, the usage of trade, or the nature of the particular business which is the subject of the agency, it may reasonably be presumed that the parties to the contract of agency originally intended that such authority should exist, or where, in the course of the employment, unforeseen emergencies arise which impose upon the agent the necessity of employing a substitute; and that, when such authority exists, and is duly exercised, privity of contract arises between the principal and the substitute, and the latter becomes as responsible to the former for the due discharge of the duties which his employment casts upon him, as it he had been appointed agent by the principal himself. ... 82The approach taken by the Court in De Bussche has been followed in more recent judgments, including, for example the New South Wales Court of Appeal judgment in Romeo v Papalia [2012] NSWCA 221 at [107] - [109] per Sackville AJA (Basten JA and Campbell JA agreeing) and the House of Lords decision in Tarn v Scanlan; Nielsen, Andersen & Company v Collins [1928] AC 34 at 48 per Viscount Cave Lord Chancellor and Lord Shaw. 83I accept the submission of the appellant that, in reliance on De Bussche (and the subsequent authorities which followed it), whilst there is no express authority to delegate in the Power of Attorney, the appellant, as attorney, had an implied authority to instruct his solicitors to act on behalf of his mother by communicating to the respondent a decision to elect to commute the lump sum of his mother's pension entitlements. 84I note that the appellant also contended that he, as an agent, did not require express authority to appoint another to perform what was a purely "ministerial" act on behalf of his mother, as principal (such as, for example, the communication of an election to commute her pension to a lump sum). In so contending, the appellant relied upon the passages from G E Dal Pont, Law of Agency (2001) at [9.18] and [9.19]. Those passages appear, respectively, at [9.19] and [9.20] of the most recent edition of the book, namely, G E Dal Pont, Law of Agency 2nd ed (2008), as follows: [9.19] Purely ministerial acts fall outside the non-delegation rule. Agents may appoint another person to perform on [sic] purely ministerial acts because such acts involve no exercise of judgment by the sub-agent- the appointee is simply the agent's instrument in effecting the agent's duty or discretion, not the agent's delegate. Expressed another way, the agent is merely selecting 'the hand of another to carry her intention into effect'. ... [9.20] A typical ministerial act involves a person signing under the direction of the agent. In LEP International Pty Ltd v Alantrrafic Express Service Inc [(1987) 10 NSWLR 614)] for instance, a charterparty conferred on the charterer, as agent, the authority to sign bills of lading on behalf of the owner of the ship the subject of the charter. It was held that the signature of a bill by the sub-agent of the charterer did not prevent the owner from being bound by the bill because the signature was a purely ministerial act. ... 85Whilst it is unnecessary for me to resolve that issue, given the conclusion I have already reached (and because this issue was not, as noted, the subject of debate during these proceedings), I would accept the submission of the appellant, in reliance on the passages from Law of Agency set out above, in this respect. That is, I accept that the writing of the 20 April 2010 letter by Mr Goodwin, provided the letter was written on the direct instruction of the appellant and involved no exercise of judgment independently on the part of Mr Goodwin (which question will be determined in the consideration of issue two, below), constituted a purely ministerial act. It follows that, in the result, and in such circumstances, the appellant had authority, under his Power of Attorney, to instruct Trenches to carry into effect his decision to elect to commute his mother's pension to a lump sum. 86Having considered those matters, it is now appropriate to embark on a consideration of the three issues referred to above, beginning with issue two.

Issue Two: Did Trenches have Actual Authority to Write the Letter of 20 April 2010 on Behalf of Mrs Hildebrand? 87The respondent advanced arguments in respect of issue two in both its original submissions, delivered orally on 6 November 2012, and its supplementary written submissions filed 18 February 2013. I intend to deal first with the contentions advanced by the respondent in its original submissions, but, before doing so, pause to address a practical matter arising from the supplementary submissions of the respondent. 88The respondent framed its supplementary submissions, as earlier noted, in terms of the three issues identified by the parties on appeal as requiring resolution in order to determine the validity or otherwise of the election. However, with respect to issue two, the respondent incorporated into its supplementary submissions two propositions which, in actuality, relate more closely to issue four (issue four being, in short, whether the election took effect prior to the death of Mrs Hildebrand notwithstanding the respondent had not satisfied itself of her entitlement to a reversionary pension as at that date). Those propositions, which appeared at paragraphs one and three of the respondent's supplementary submissions (set out above), concerned the fact that the 20 April letter did not indicate on whose instructions or authority the statement "Mrs Hildebrand wishes to take a lump sum payment" was made, and that, if the respondent was not in a position to be satisfied that the purported election was authorised before Mrs Hildebrand's death, it could not have "taken effect" before that time. 89It was submitted by the appellant, in supplementary submissions that, in considering issue two, a distinction should be drawn between whether Trenches in fact had actual authority to write the 20 April letter, and whether or not it was necessary for the respondent to have satisfied itself of the fact of that authority before the election to commute could have taken effect. I accept that submission and, notwithstanding the way in which the supplementary submissions of the respondent have been framed, I am of the view that it is more convenient to deal with the matters appearing at paragraphs one and three of the respondent's supplementary submissions in the course of considering issue four. 90It is also convenient to make note, at this point, of one further matter raised in the respondent's supplementary submissions in relation to issue two, which was a matter not previously raised in the respondent's original submissions. That matter concerned the validity of the Power of Attorney held by the appellant. That is a matter which, in my view, is relevant to the matters raised by issue two and will, therefore, be dealt with separately in this section. 91I shall, however, commence with a consideration of whether, putting aside, at this stage, the question of the validity of the appellant's Power, Trenches were given actual authority by the appellant to write the letter of 20 April 2010 on behalf of Mrs Hildebrand.

Did the Appellant give Trenches Actual Authority to Write the Letter of 20 April 2010? 92It can be deduced, from the original submissions of the respondent taken as a whole, that, in respect of this issue, the main contention advanced by the respondent was that no instruction had been given to Trenches by the appellant to communicate an election to commute his mother's pension entitlements to a lump sum and, therefore, that Trenches did not have actual authority to write the letter of 20 April 2010 (although, it can be noted, it was conceded by counsel for the respondent, at the hearing of the matter, that there was evidence that "pointed in the right direction" of there being actual authority to write the letter). Concomitant with that issue were the further contentions of the respondent that, specifically, no such instruction had been given by the appellant during a telephone call to his solicitors on 19 April 2010 and that, in any event, even if there had been a communication on that date, given that Trenches (and, therefore, the appellant) had not received the STC letter of 2 March 2010 prior to 20 April 2010, the appellant could never be taken to have given instructions in respect of electing to take a lump sum payment at that time. 93I have come to the conclusion that the respondent's contentions, in this respect, should be rejected and that, in fact, instructions were given to Mr Goodwin (either directly by the appellant or via Ms Petersen) on or before 19 April 2010 to communicate to the respondent an election to commute the lump sum in full of his mother's pension entitlements (and, therefore, that Trenches had actual authority to write the letter of 20 April 2010). Implicit in that finding is that the appellant did, in fact, see the STC letter of 2 March 2010 prior to having given those instructions to Trenches on or around 19 April 2010. This conclusion is, of course, subject to the resolution of the supplementary submission raised by the respondent as to the validity of the appellant's authority (which matter, as noted, will be considered separately at the conclusion of this section). 94However, firstly I shall elaborate upon my reasons for concluding that instructions were, in fact, given by the appellant to Trenches to communicate an election to commute his mother's pension entitlements to a lump sum, beginning with a consideration of the issue of the 19 April 2010 telephone conversation between the appellant and Trenches.

Telephone Conversation of 19 April 2010 95The appellant's affidavit evidence, in this respect, was to the effect that he had given instructions to his solicitors to make the election to take a lump sum payment from the respondent on behalf of his mother. The appellant deposed that that instruction was given to Mr Goodwin and Ms Petersen on or around 19 April 2010. That affidavit evidence was in the following terms: 14. On or about 19 April 2010, I had a telephone conversation with John Goodwin and Gail Peterson of Trenches. I instructed them that they should elect on behalf of my mother to take a lump sum payment from State Super. I gave them that instruction as I believed it would be of more benefit to my mother at her age than a continuing pension. 96In cross-examination, the appellant was unable to recall, when asked by counsel, whether he had given that instruction to both Mr Goodwin and Ms Petersen or Ms Petersen alone. That evidence was as follows: Q. You had a conversation with Gail concerning the requirements and details that needed to be sent through to State Super, do you remember that? A. Yes. Q. And that was a conversation which took place on 19 April 2010? A. On or about, yes. Q. You realise that, after speaking to Gail, there were a number of documents which you were going to, you would need to supply for the process of claiming the benefits which were payable to your mother, correct? A. Yes. Q. This was conversation which took place on 19 April 2010; it was a telephone conversation, wasn't it? I take you to annexure H of the affidavit. That is a letter dated 2013 April 2010, do you see that? A. Yes. Q. That's a letter that was sent by express post and it says to State Super. It contains or attaches a number of documents, correct? A. Yes. Q. It refers to the the first letter that we discussed which was on 24 February 2010. There is no reference in that letter, is there, to the next letter we discussed which was 21 March 2010 which you enclosed reference to a lump sum? A. I'll believe you. Q. It said there, your solicitor writes, "Mrs Hildebrand wishes to take a lump sum payment". Having seen that let's go back to your affidavit. You see at paragraph 14 you say, "On or about 19 April 2010 you had a telephone conversation", are you sure that was with John Goodwin and Gail or just Gail? A. I don't remember. Q. You see there, "I instructed them that they should elect on behalf of my mother to take a lump sum payment from State Super." Do you recall what you said to either Gail or John? A. Yes. Q. What did you say? A. Exact words I can't recall. Q. That's what I was asking, or words to the effect? A. Words to the effect, my words to the effect would be something along the lines, "If I were to not take a lump sum my ability to act on behalf of my mother could be questionable because I would be mad to take anything other than a lump sum bearing in mind specifically Mum's age, forget the other two issues". ... Q. Did you ask her what she thought about it? A. About the money? Q. Yes? A. Yes. Q. You see, there is nothing in your affidavit about that. Is there any reason for that? A. Was there a need for it? Q. Well, I mean specifically did you ask her whether she would prefer to take a pension or a lump sum? A. As enduring power of attorney I made that decision. I told Mum that we had opted for the lump sum. Her response to me was, "That's for you kids" and I said, "No, that's for the girls". Mum's response was, "and boys", meaning my nephews. ... Q. If we just go back to paragraph 14, you mentioned your late mother said when you her about the decision to take a lump sum, that was something for the kids? A. Yes. Q. Girls and boys I think she corrected you, is that right? A. Yes. Q. You see, you have got there in the last sentence, "I gave them that instruction because I believed that would be of more benefit to my mother at her age than a continuing pension"? A. Yes. Q. That is not quite right, it wasn't a benefit to your mother? A. Yes, it was. Q. In what way? A. We were looking Mum's comment to me was that she was thinking the money would go to her children. We were planning on Mum spending time in a nursing home after spending time in a private hospital and then going to a nursing home. The standard of service provided to Mum was far from adequate and we were looking at that money to top up so she could get the services at the nursing home that she was getting at the hospital. That's why I was looking at the money coming for. 97Mr Goodwin gave evidence in cross-examination that, whilst he could not recall the specifics of any conversation between himself and the appellant prior to 20 April 2010, with respect of the appellant's decision to elect to commute his mother's pension to a lump sum, the appellant had indicated his intention to do so to Mr Goodwin during several conversations and had, prior to 20 April 2010, instructed either himself or Ms Petersen to communicate that election to the STC. That evidence was as follows: Q. Do you recall him coming into see you also in relation to a letter that he received on behalf of his mother from State Super? A. Yes, I saw that letter, I knew it came in, yep. Q. Did you have any specific discussion with him about that letter at the time you brought him in? A. I don't know when I had discussions with him about it but I had had discussions where he had told me that he wanted to make an election to take a lump sum. He just wanted to wait until he found out what the lump sum was. Q. Is it the case that Gail Petersen had by and large conduct of both the probate file and any enquiries made with State Super? A. Yes, she had a fair bit of that conduct of the matter, yes. ... Q. That is because that was part of the on going correspondence in relation to the estate, correct? A. Well, no. I was in contact with John. I had had discussions with John about Mrs Hildebrand's entitlement to the super and the conversion of her pension which he had indicated to me that's what he wanted to do. Q. Did you make any file note about these conversations? A. No. Q. Why not? A. They were just conversations over the phone. Q. But they are important conversations, were they not, as to what your client is instructing you to do? A. They are really clear and basic instructions, I don't see Q. Wouldn't it have been your usual practice to make file notes of instructions that are given to you by clients? A. No, often I just carried out with the letter and sent them a copy, and these were discussions, they are not these were discussions prior to this letter. John had said I want to get, I want Mum to take a pension because she is elderly and I want to know the amount and they were just discussions we had had up until that time. They weren't specific instructions up until this time. Q. You just mentioned there a pension, did you mean to say a commutation? A. What did I say? Q. That he instructed you that Mum wished to take a pension? A. Yes, that she wished to take a lump sum. We never referred to it as a commutation in our conversations, it was always a lump sum. Q. When you said pension that was a just a slip? A. Yes. ... Q. You cannot recall the specifics of a conversation with Mr John Hildebrand prior to 20 April 2010 to the effect that his mother was to take a lump sum payment, is that right? A. I had conversations with him where he told me that is what he wanted me to do but he was waiting just to ascertain the full amount. Q. Why on earth didn't you put that in your affidavit? A. They were discussions we had. Q. That was the first time this evidence has been given, do you agree with me? A. Yes, or earlier today. 98Having observed the appellant closely during cross-examination, my impression was of an honest and reliable witness who endeavoured to answer questions in a straightforward, frank and candid manner (this impression permeates all relevant parts of my reasoning in relation to issue two, although, in reaching conclusions, it has been combined with a consideration of materials or factors bearing objectively upon the issue). 99I do not consider that the concession of the appellant in cross-examination that he could not recall to whom at Trenches he had conveyed the instruction to elect to commute his mother's pension as a lump sum undermined the clear evidence of the appellant that the instruction was, nonetheless, given by him in a communication with his solicitors which occurred on or around 19 April 2010. The appellant provided a convincing explanation as to the basis for his recollection of that event (which explanation is also relevant to the issue, to be considered below, of the receipt of the 2 March 2010 letter by Trenches). That is, the appellant recalled having spoken with his mother about her entitlement and informing her that he had decided to opt for the lump sum option. 100It can be also be noted, at this juncture, although no significance was placed upon it by the parties at the hearing or in written submissions, there appeared to be an inconsistency in the appellant's evidence as to his reason for electing to commute his mother's pension to a full lump sum. The reason given by the appellant in his affidavit was that he believed a lump sum "would be of more benefit to my mother at her age than a continuing pension", whereas, in cross-examination, the appellant deposed that his mother had indicated that the lump sum would be for "you kids", referring to her children and grandchildren (however, the appellant also re-iterated, later during cross-examination, that the money was to be used for his mother's care and accommodation). I do not consider, however, that there was, in truth, an inconsistency in the appellant's evidence as to his reason to elect to commute the pension. The apparent discrepancy between his accounts is explicable upon the basis that it most likely reflected discussions which had occurred between the appellant and his mother in which his mother had expressed a view different to his as to what the lump sum, when received, may be used for. The difference in approach did not concern the giving of any instruction to commute per se as that was common to both approaches. In the result, the possible difference of views between the appellant and his mother does not strictly require resolution as, on either approach (or view), an election to commute would follow. 101The evidence of the appellant, in respect of having given the instruction, was also corroborated to some extent by the evidence of Mr Goodwin given in cross-examination. Whilst Mr Goodwin could not recall any specific conversation between him and the appellant on 19 April 2010, he did recall having spoken to the appellant on several occasions about his intention to take the lump sum. Further, the evidence of the appellant that he had so instructed his solicitors on or around 19 April 2010 was consistent with the letter which was, in fact, sent by Mr Goodwin on 20 April 2010 both in terms of its substance (in particular the sentence "Mrs Hildebrand wishes to take a lump sum payment", "lump sum" being the term normally used by the appellant in conversation with his solicitors) and its timing (given that it was sent a day after the instructions were said to have been given, noting, also, the evidence of Mr Goodwin that, rather than making file notes of such instructions, he often simply carried out the instruction by sending a letter then providing a copy of the same to the client). 102The respondent sought that the appellant's evidence be rejected based upon inferences that may be drawn from the documentary evidence (although, it can be noted, it was not put to either the appellant or Mr Goodwin in cross-examination that the telephone conversation, in which the instruction was given, never, in fact, occurred). In this respect, it was submitted that a file note taken by Ms Petersen regarding a telephone conversation between herself and the respondent on 19 April 2010 (which file note was annexed to her affidavit) made no reference to the appellant having given any instruction to her, on or as at that date, to communicate an election to commute the lump sum of his mother's pension entitlements (rather, the note contained details of what documentation was required in respect of the member, the spouse and identification requirements). The Court was invited to draw an inference from this record that no mention was made in the file note because no such instruction had been given by the appellant. 103I do not consider that the documentary evidence properly permits the drawing of such an inference, whether considered alone or in the context of the overall evidence given by the appellant. The fact that no mention was made by Ms Petersen of the appellant's intention to make an election to commute does not necessarily result, for several reasons, in the conclusion that the appellant had not communicated the same intention to Trenches prior to 20 April 2010. 104First, the file note made by Ms Petersen on 19 April 2010 was in respect of a telephone conversation between Ms Petersen and the respondent. There is no reason, as a matter of logic, why Ms Petersen would have recorded details of a conversation with the appellant in that file note (the issue as to why no file note was taken in respect of the telephone conversation between Trenches and the appellant will be addressed below). 105Secondly, (and assuming the telephone conversation between Ms Petersen and the respondent occurred at a time after the conversation with the appellant on or around the same date) given the election requirements of the Act, it does not necessarily follow that Ms Petersen would have mentioned the appellant's intention to commute during her telephone conversation with the respondent. The action which was required under the Act was that the election be put in writing. 106Thirdly, the evidence is inconclusive as to whether the instruction was, in fact, given by the appellant to Ms Petersen at all (or, alternatively, whether it was given to Mr Goodwin or both Ms Petersen and Mr Goodwin). Neither the appellant nor Mr Goodwin could recall the specifics of the 19 April 2010 conversation, in respect of whom at Trenches took the call, and Ms Petersen was not cross-examined during the hearing of this matter. 107A further and related question arose as to why no file note had been made of the telephone conversation between the appellant and Trenches on 19 April 2010 regarding an election. Mr Goodwin provided an explanation, in this respect, in cross-examination, namely, that it was the usual practice of the firm not to take file notes of "conversations over the phone" or conversations involving "really clear and basic instructions" which was to be the subject of immediate correspondence consistent with the instruction. A mere deviance from the 'ideal' or 'usual' practice of solicitors does not permit an adverse inference to be drawn in circumstances where the evidence discloses that, on the following day, the solicitor acted in accordance with his regular practice, that is, to write the letter.

Receipt of the 2 March 2010 Letter 108The further and related contention by the respondent was that Trenches had not received the STC letter of 2 March 2010 prior to 20 April 2010 and, therefore, the appellant could never be taken to have given instructions in respect of electing to take a lump sum payment. 109The appellant's affidavit evidence, in respect of the 2 March 2010 letter, was to the effect that the letter was sent to Trenches and provided details of the pension and lump sum amount. That evidence was in the following terms: 12. On 2 March 2010, a letter was also sent from State Super to Trenches providing, amongst other things, the details of the pension and lump sum amount. A copy of the letter is annexed and marked "G". 110In cross-examination, the appellant's evidence was to the effect that he had seen the STC letter of 2 March 2010 prior to instructing his solicitors, on or around 19 April 2010, to communicate an election to commute his mother's pension to a lump sum. That evidence was in the following terms: Q. In relation to the next letter, which is exhibit G, could you just turn to it, it is annexure G, that is a letter dated 2 March 2010. That is a letter addressed to your solicitor, John Goodwin, correct? A. Yes. Q. You don't have any specific recollection of this letter, do you? A. I saw that letter. Q. I understand that. What I want to put to you is that you didn't see that letter on or about March 2010, you saw it after September 2010; would you like to make any comment on that? A. I saw that letter before September. Q. The only reason I ask you about that is because you will see from the second page there is a reference to a lump sum amount of $91,750.46, do you see that? A. (Witness nods) Q. It would appear from the correspondence that your solicitors sought a copy of that letter in September or October 2010, the inference to draw from that would be that they perhaps didn't receive it. Are you quite sure you saw a copy of this letter? A. Yes. Q. Do you know when? A. It would have been late February, early March I think. Q. But you don't know? A. No, Mum was alive. Q. Sorry? A. Mum was alive when that letter arrived. Q. I understand your mother was alive when the letter was written, what I'm saying to you is how can you be sure you saw that letter while she was still alive? A. Because I talked to Mum about that amount of money. Q. Did you become aware that that amount of money upon seeing it in documentary form or discussing it with Gail? A. I saw the letter. ... Q. You will see in the letter that was dated 2013 April 2010, which is immediately before that which is annexure H, there is no reference to the amount of lump sum that your mother wished to take at that stage? A. That's right. Q. Was there any discussion as to whether it would be in part or in full or how much? A. My interpretation of the letter I got was a figure of around, a lump sum figure of around $90,000. So I was taking a lump sum, that's what I was expecting it to be. Specific amount wasn't mentioned so I couldn't ask for a specific amount. Q. You would agree with me that the details in both of those letters on 24 February 2010 and also 2 March 2010 which you saw, you did receive or you saw, they refer to not only full lump sum but also part lump sum payment. Did you ever discuss that with your mother? A. Not the mention option of a pension. I did discuss the option of a pension and I said we are taking a lump sum. I did not discuss the option of a lump sum and part pension. Q. Because a part lump sum would have been sufficient for doing the things that you just spoke, that you gave evidence about in your relation to your mother's future well being, correct? A. It would. 111In my view, the appellant's evidence in chief was not diminished by this cross-examination. Rather, the cross-examiner elicited from the appellant what was a quite plausible explanation as to his recollection of seeing the 2 March letter. The effect of this evidence (in short form) was that the appellant recalled having spoken to his mother about the estimated value of the lump sum (being, in his words, "a figure of around $90,000"), which amount had only been set out in the 2 March letter. 112Nonetheless, the respondent contended that the Court would not be satisfied that the letter of 2 March was received by Trenches (and seen by the appellant) prior to September 2010 (when a copy of the letter was received) and, therefore, the Court should reject the appellant's evidence in this respect. That contention was based upon two factors from which, it was submitted, inferences adverse to the appellant's evidence may be drawn. Those factors (which shall be expanded upon below) concerned, in short form, firstly, the contents of the Trenches letter of 20 April 2010 and, secondly, the conduct of the matter by Mr Goodwin. 113The first and immediate difficulty with the contention of the respondent, in this respect, is that it requires the Court to reject the rather forthright evidence of the appellant based upon inferences said to be available from documentary material and, to a lesser extent, some concessions made by Mr Goodwin. That contention would be more tenable if the documentary and other records relied upon provided strong and unequivocal evidence which substantially undermined the appellant's evidence. However, they do not. The evidence relied upon by the respondent, at best, raises some doubts as to the evidence of the appellant, but does, in my view, provide a proper basis to reject it. Further, for any doubts which were raised, there were, for the most part, at least, 'plausible' alternative explanations provided by the appellant or Mr Goodwin. That may be demonstrated by a brief appraisal of each proposition. 114The first proposition advanced by the respondent, in this respect, was that it could be inferred from the fact that no reference was made in the Trenches letter of 20 April 2010 to the STC letter of 2 March 2010 or the amount of the lump sum contained therein (as opposed to the reference to a previous STC letter of 24 February 2010) that the letter of 2 March 2010 was, in fact, never received by Trenches (and, therefore, not seen by the appellant) prior to 20 April 2010. 115A possible explanation for the absence of reference to the 2 March letter is, of course, that the 2 March letter was not originally received by Trenches. However, it simply cannot be argued, as a matter of logic, as the respondent sought to do, that the absence of reference to the 2 March letter is necessarily conclusive of that fact. Counsel for the appellant, in my view, provided a plausible explanation as to why the 20 April letter included a reference to the 24 February letter but omitted a reference to the 2 March letter. That is, that the 20 April correspondence referred to the letter of 24 February because it enclosed documents which had been requested in that letter. The 20 April correspondence may not have referred to the letter of 2 March or, in particular, the amount of the lump sum set out therein, because that amount was an estimate only. 116The second proposition of the respondent, in support of its contention that the appellant's evidence as to having seen the 2 March letter should also be rejected, was that, in late August 2010, Mr Goodwin could not locate the STC letter of 2 March in Trenches' file and had subsequently requested (and received) a copy of the same from the respondent in September 2010. From this fact, it was contended, it could be inferred that Trenches never received the original letter (and, therefore, that the appellant had not seen the letter prior to 20 April 2010). Once again, however, such a conclusion does not necessarily follow. The fact that the letter could not be located by Mr Goodwin in late August (prompting him to then request a copy of the same from the respondent) does not lead, categorically, to the conclusion that the original letter was never received. There could, conceivably, be any number of alternative explanations for that occurrence including, as the evidence of Mr Goodwin seemed to suggest, that the letter was misplaced. 117In cross-examination, Mr Goodwin provided an explanation as to how Trenches may have received the original 2 March letter prior to 20 April 2010, notwithstanding the fact that he could not locate that letter in late August 2010. Whilst, in his evidence, Mr Goodwin acknowledged that he had requested a copy of the 2 March letter when he was unable to find the letter on the file, the letter, which he believed to be the original, was later ultimately located. That evidence was in the following terms: Q. I show you page 80 of exhibit 4 (Shown). That is a letter from your firm to State Super dated 24 September 2010, do you see that? A. Yes. Q. In that letter, in the penultimate paragraph you refer to a letter dated 2 March 2010? A. Yes. Q. Of which you don't have a copy? A. Yes. Q. Is it because your firm never received that letter? A. I don't know what happened with that letter. It wasn't on my file when I reviewed it, but I did find the letter and there was some confusion there but the letter was ultimately found on the file, but around this time I wasn't aware of it. Q. Well, if I could take you back to page 76, which is a letter from State Super at the bottom dot point, you see there is a reference to a letter dated 2 March 2010 sent from State Super? A. Yeah. Q. That alerted you to the fact there was such a letter, correct? A. Yes. I don't know when I was aware that the letter hadn't been seen or, Gail may have had it, I'm not too sure what happened to the letter. Q. As at 24 September 2010 when the letter was sent from your firm, which is now page 8, it was not on the file, correct? A. No, I wasn't aware of it at that time. Q. And your firm has a policy of stamping letters when they come in? A. Yes. Q. There is no letter, you would agree with me, dated 2 March 2010 from State Super with your firm's date stamp on it received, correct? A. No, I don't believe there is. Q. And the first time you were made aware of that letter was this letter from State Super dated 30 August 2010? A. It could have been, yes, I don't know. I think I I know I found that letter at some time and State Super had also sent me a copy again because of that request. Q. Had there been a letter that your firm received dated 2 March 2010, it was more likely than not to have a date received stamp on it? A. Yes. Q. And you have been unable to find that letter, correct? A. Sorry? Q. You have been unable to find that letter matching that description with a date stamp on it? A. I found a letter but it didn't have a date stamp on it. Q. It could very well have been a copy of the letter sent from State Super, correct? A. My feeling was it was the letter. 118It was submitted by the respondent that this evidence may be doubted because the letter later found by Mr Goodwin was not date stamped in accordance with the firm's usual practice. It could not be determined whether that copy was, in fact, the original letter. Whilst the absence of a date stamp would provide a contrary indication it is not sufficient, in my view, to displace Mr Goodwin's view that, in fact, he had located the original letter. He did, after all, know that a copy of the letter had been requested and received and that another version of the letter was later found. His opinion that Ms Petersen may have held the letter is speculation but he did express the view, as a senior solicitor at Trenches, that an additional letter was found at a later time. The request for the letter cannot displace this evidence because it cannot, of itself, contradict that the original letter may have been found at a later date. In any event, the absence of the date stamp on Trenches' copy of the letter (or its request for a copy) cannot be a sufficient basis to displace the clear evidence of the appellant with respect to the receipt of the 2 March letter before 20 April 2010. 119Having considered the evidence of the appellant and Mr Goodwin and the submissions of the parties in relation to the relevant documentary material, I am of the view that, on the balance of probabilities, the appellant instructed his solicitors on or before 19 April 2010 ("on or about" were the words used by the appellant in his affidavit, and it can be noted that neither party raised as an issue the exact date of the telephone conversation) to communicate an election to commute his mother's pension entitlements to a lump sum having seen the STC letter of 2 March 2010 which was received by Trenches prior to that date. 120In any event, the matter of the receipt of the 2 March letter is not, in my view, crucial to the resolution of the issue as to whether Trenches had actual authority to write the letter of 20 April 2010. Even if I had concluded that the original 2 March letter had not been received by Trenches and viewed by the appellant prior to the correspondence of 20 April 2010, it is clear to me that the appellant had in his mind the option of the lump sum payment. This is evidenced by the fact that the option to commute Mrs Hildebrand's pension entitlement to a lump sum had been raised previously in the following correspondence: first, in an STC letter addressed to Mrs Hildebrand on 1 February 2010 which set out her potential entitlements and contained information regarding the commuting of her pension to a lump sum; secondly, in a Trenches letter of 18 February 2010 in which details were requested of both the amount of the pension and lump sum payments; and, thirdly, in the STC letter of 24 February which also made mention of the option to apply to commute part or all of the pension to a lump sum. The relevance of those pieces of correspondence is that, even in the complete absence of the 2 March 2010 letter, there is evidence which would support a conclusion that the appellant was aware of the option to elect to commute his mother's pension to a lump sum payment prior to 20 April 2010 so that he was in a position to instruct his solicitors on this issue on or around 19 April 2010.

Section 160 of the Conveyancing Act 1919 121A further question, with respect to issue two, was raised for the first time by the respondent in supplementary submissions. That question concerned whether, quite apart from whether an instruction was, in fact, given by the appellant to Trenches to communicate an election to commute his mother's pension to a lump sum, the appellant had authority, under the Power of Attorney at the relevant time, to give such an instruction. 122It was submitted by the respondent, in this respect, that, whilst a copy of the Power of Attorney granted to the appellant by his mother was enclosed with the letter of 20 April 2010, it was not expressed to be an "irrevocable" power within the meaning of s 160 of the Conveyancing Act 1919 (now repealed but saved for the purposes of Powers of Attorney executed before the enactment of the Powers of Attorney Act 2003, pursuant to s 6 of that Act). It followed that the respondent could not have safely assumed, as at 20 April 2010, that the Power of Attorney remained valid or that Trenches was authorised to make the purported election to commute. 123Section 160 of the Conveyancing Act was in the following terms: 160 Irrevocable powers (1) Where a power of attorney is, in the instrument creating the power, expressed to be irrevocable and is, or in the instrument creating the power is expressed to be, given for valuable consideration, the power is not, except to the extent (if any) that the instrument otherwise provides, revoked or otherwise terminated by, and remains effective notwithstanding: (a) anything done by the principal without the concurrence of the attorney, (b) bankruptcy of the principal, (c) mental incapacity of the principal, (d) the principal becoming a patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958, or any other event happening whereby the property or affairs of the principal becomes or become subject to care, management, collection, administration, charge or control under that Act, (e) death of the principal, (f) if the principal is a corporation, dissolution of the corporation. (2) Where the objects of a power of attorney to which this section applies have been carried out, or have become incapable of being carried out, or a power of attorney to which this section applies is otherwise exhausted, the Court may order that the power of attorney terminate and may order that the instrument creating the power be delivered up for cancellation. (3) This section does not apply to a power of attorney created by an instrument executed before the commencement of the Conveyancing (Powers of Attorney) Amendment Act 1983. 124It is difficult to identify the substance of the respondent's contention with respect to the Conveyancing Act issue, given the limited nature of its submissions on the topic (the respondent's argument in respect of that issue was confined to one paragraph appearing in its supplementary written submissions; the issue, as noted, had not previously been raised by the respondent in its oral submissions). In particular, whilst the respondent submitted that the Power of Attorney granted to the appellant by his mother had not been expressed to be irrevocable, it did not advance any argument as to what, if any, consequences in law flowed from that fact. (Did it follow, for example, that an election, otherwise properly made, would be rendered invalid by dint of the absence of the expression, in the Power of Attorney, that the power was irrevocable?) 125In any event, the respondent's submission, in this respect, seems to have misunderstood the effect of s 160 of the Conveyancing Act. Section 160(1) does not stipulate that a Power of Attorney must be expressed as irrevocable, let alone that a failure to do so would render the exercise of the power under such an instrument invalid or ineffective. Rather, the provision provides that, where the instrument is expressed to be irrevocable, the power is not rendered ineffective in consequence of, inter alia, the mental incapacity or death of the principal, subject to any contrary express term. The Power of Attorney granted to the appellant by his mother was entirely in conformity with the effect of s 160(1) because the Power was expressed to have been granted "with the intention that it will continue to be effective notwithstanding that after its execution I suffer loss of capacity through unsoundness of mind". 126Given that a copy of the appellant's Power of Attorney, which was "expressed to be irrevocable" for the purposes of s 160(1) of the Conveyancing Act (and which, therefore, remained effective despite any loss of mental capacity which may have been suffered by Mrs Hildebrand as at 20 April 2010), was enclosed, along with certain other documents, in the Trenches letter of 20 April 2010, the respondent's submission that, as at that date, it could not have safely assumed that the Power remained valid cannot be sustained.

Conclusion re Issue Two 127It follows from the above discussion that the question raised by issue two should be answered in the affirmative. In other words, Trenches did have actual authority (given by the appellant who was acting, at the relevant time, pursuant to a valid Power of Attorney) to write the letter of 20 April 2010 on behalf of Mrs Hildebrand. The Trenches letter, in those terms, to the respondent was received by the respondent prior to Mrs Hildebrand's death.

Issue Three: Was the Election Ineffective Because of Ambiguity or Uncertainty as to Whether it was a Commutation in Respect of the Whole of the Pension Entitlement? 128It was contended by the respondent that, even if the Court was to conclude that Trenches had authority to make an election on behalf of Mrs Hildebrand, the letter of 20 April 2010, and in particular the sentence "Mrs Hildebrand wishes to take a lump sum payment", was so uncertain and ambiguous as to whether it referred to a commutation in respect of the whole of the pension or part only that would render the election ineffective. The STC correspondence of 24 February 2010 noted that Mrs Hildebrand could apply to commute part or all of the pension to a lump sum. Whilst reference was made to the letter of 24 February in the Trenches letter of 20 April, the latter correspondence failed to express, with sufficient clarity and certainty, that an election was being made to fully commute the pension. 129I do not accept the contention of the respondent in this respect. Rather, I accept the submission of the appellant that the election must be taken to be in respect of the whole of the pension for the reasons which will follow. First, given Mrs Hildebrand had a legal right to commute the pension which could be exercised in part or whole (by s 21C(1) of the Act), the fact that the Trenches letter of 20 April failed to specify that it was exercised in part only must result in the conclusion that it was in respect of the whole. As the appellant submitted, the circumstances of the present matter equated to a situation where a creditor, owed a debt repayable in whole or part on demand, writes a letter to the debtor stating "I hereby demand repayment of the debt". In not specifying it is a demand in respect of part only, such a demand must take effect as a demand in respect of the whole. 130Secondly, there can be no reasonable uncertainty that the 20 April letter was referring to the whole of the pension when the letter is considered in the context of correspondence prior to that date, in particular, the correspondence of 18 February in which Trenches had requested from the STC details as to "[t]he amount of the lump sum payment". The STC duly provided those details in the letter of 2 March 2010. Whilst that correspondence noted that Mrs Hildebrand had the option to commute part or all of her pension to a lump sum, it provided an estimate in respect of the whole lump sum, noting that "[a]s at 2 March 2010 the lump sum is estimated at $91,750.46". 131In any event, the alleged deficiency in the election due to uncertainty was not relied upon by the respondent as a ground for its original decision to reject the election. The sole ground, as advised in the STC letter of 17 June 2010, appeared to be the lack of authority of Trenches to write the letter. The uncertainty as to whether the election was in respect of part or whole of the pension was only raised as an issue in the advice of Mr Ower of 3 November 2010.

Conclusion re Issue Three 132It follows that, in the result, the answer to the question raised by issue three should be in the negative. In other words, the election was not ineffective because of ambiguity or uncertainty as to whether it was a commutation in respect of the whole of Mrs Hildebrand's reversionary pension entitlement. The election was for the commutation of the whole of Mrs Hildebrand's reversionary pension.

Issue Four: Did the Election "Take Effect" Before the Death of Mrs Hildebrand, Notwithstanding the Respondent had not Satisfied itself of her Entitlement to a Pension Prior to her Death, or of Trenches Authority to Write the Letter of 20 April 2010?

Authorities as to Statutory Construction 133It will be observed that the contentions advanced on this issue revolve, in part, around questions of statutory construction. There are several recent High Court authorities which provide guidance as to the process of statutory construction. Those judgments were the subject of recent discussion by a Full Bench of the Industrial Relations Commission in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Education and Communities [2013] NSWIRComm 32. The relevant passages from the judgment of the Commission (at [24]), which I adopt for the purposes of this judgment, are set out below: 24 There are three recent High Court authorities which provide guidance as to the correct approach to statutory interpretation, namely, Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 293 ALR 412, Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32. Key principles, relevant to the present proceedings, can be distilled from these authorities: (1) The legal meaning of a provision of a statute is to be ascertained by processes of statutory construction: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J. Thus, the fundamental object of statutory construction is to ascertain legislative intention: Certain Lloyd's Underwriters at [88] per Kiefel J. However, the use of the metaphor 'legislative intention' must not mislead. This expression must be understood as the intention that the courts will impute to the legislature by a process of construction: Certain Lloyd's Underwriters at [88] per Kiefel J. The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J (applying Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 at [78] per McHugh, Gummow, Kirby and Hayne JJ); (2) Ordinarily, the legal meaning of a provision of a statute will correspond with the grammatical meaning, but not always: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J and at [68] per Crennan and Bell JJ (applying Project Blue Sky at [78] per McHugh, Gummow, Kirby and Hayne JJ). Nontheless, the process of statutory construction must begin with a textual analysis of the words of a provision - that is, a consideration of the ordinary and grammatical meaning of the words: Australian Education Union at [26] per French CJ, Hayne, Kiefel and Bell JJ; Barclay at [41] per French CJ, Crennan, Gummow and Hayne JJ; Certain Lloyd's Underwriters at [23] per French CJ and Hayne J. Although that initial step may involve the construction of the words of a provision in question when read in the context of the statute as a whole: Certain Lloyd's Underwriters at [88] per Kiefel J. Thus, the legal meaning is ascertained by reference to the language of the statute viewed as a whole: Certain Lloyd's Underwriters at [26] per French CJ and Hayne J and [88] per Kiefel J. The purpose of the statute resides in its text and structure: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J; (3) Context may also be considered "in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy.": Certain Lloyd's Underwriters at [88] per Kiefel J; (4) The context and purpose of a provision are important to its proper construction. Legal meaning may be ascertained by reference to general purpose, consistency and fairness: Certain Lloyd's Underwriters at [24] per French CJ and Hayne J; (5) The determination of the purpose of a statute or a particular statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, if appropriate, reference to extrinsic materials: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J. Whilst consideration of extrinsic materials should not displace the clear meaning of the text of a provision, the purpose of a provision may be elucidated by appropriate reference to them: Certain Lloyd's Underwriters at [70] per Crennan and Bell JJ; (6) It is conceivable that the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with their literal or grammatical meaning: Certain Lloyd's Underwriters at [68] per Crennan and Bell JJ quoting Project Blue Sky at [78] per McHugh, Gummow, Kirby and Hayne JJ; (7) Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted: Certain Lloyd's Underwriters at [25] - [26] per French CJ and Hayne J and [70] per Crennan and Bell JJ. In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose: Australian Education Union at [27] - [28] per French CJ, Hayne, Kiefel and Bell JJ. 134I also note the discussion by Gageler J in Commissioner of Police v Eaton [2013] HCA 2; (2013) 294 ALR 608; (2013) 87 ALJR 267 at [95] and [97] as follows: [95] The question is wholly one of statutory construction: to be determined through the attribution of legal meaning - and consequently legal operation - to the text of the two statutes in a context which includes their mutual referencing and the history of their amendment. ... [97] One principle (reflecting an approach to legislative drafting of very long standing) is that the text of a statute is ordinarily to be read as speaking continuously in the present.100 A corollary of that principle is that, where a statute is amended, the statute and the amending statute are "to be read together as a combined statement of the will of the legislature".101 Another principle (reflecting at root no more than a convention of language) is that the legal meaning of a statutory text ordinarily corresponds with the textual meaning most appropriate to its context.102

Relevant Statutory Provisions 135Having set out the principles relating to the process of statutory construction above, the provisions of the Act and the SA Act relevant to the resolution of issue four are set out below. 136Section 21C of the Act is, relevantly, in the following terms: 21C Commuting of pension (1) A person who is entitled or becomes entitled to a pension under this Act may commute the whole or part of that pension (subject to this section and Part 6 of Schedule 25). (2) A person may not commute the whole or any part of a pension under subsection (1) before attaining the age of 55 years. (3) This section does not authorise the commutation of a pension payable in respect of children. (4) Subject to section 21D, any person desiring to commute pension pursuant to this section may elect to do so at any time after attaining the age of 54 years and 6 months. (5) An election under this section may be made in respect of 2 different amounts and as from 2 different dates and the election shall have effect as to the different amounts as from the respective dates from which the different amounts are commuted. (6) Where: (a) a person making an election under this section in respect of one amount dies before the election takes effect, the election shall be deemed to be revoked, and (b) a person making an election under this section in respect of different amounts as from different dates dies before the commutation as to one or both of those amounts takes effect, the commutation as to that or those amounts, as the case may be, shall not be effective. (7) Where an election under this section takes effect and the person who made the election dies before any lump sum payable pursuant to the election has been paid to the person, STC shall pay the lump sum to the person's personal representatives. ... 15) An election made under this section by an employee before the day on which the employee attained the age of 55 years shall be deemed to be revoked if the employee has not retired before the expiration of 12 months after attaining that age. (16) An election made under this section by an employee on or after the day on which the employee attained the age of 55 years shall be deemed to be revoked if the employee has not retired before the expiration of 12 months after making the election. ... 137Section 21D of the Act is, relevantly, in the following terms: 21D Limitations on elections under section 21C (1) Subject to this section, a person may not make an election under section 21C relating to a pension under this Act after the expiration of 6 months after: (a) the day on which the person attained the age of 55 years, or (b) the day on which the person became entitled to that pension, whichever is the later day. ... 138Section 21E of the Act is in the following terms: 21E Interest to be paid on commuted amounts Whenever a lump sum is payable under section 21C on or after the commencement of Schedule 2 (6) to the Superannuation (Amendment) Act 1988, interest at the rate currently fixed under section 86A for the purposes of this section (less any deduction for money due to the Fund) is payable from the Fund in respect of the period beginning with the date on which the lump sum becomes payable and ending with the date when it is authorised to be paid. 139Section 31 of the Act is in the following terms: 31 Pension to spouse or de facto partner on death of pensioner (1) On the death of a male pensioner, pension is, subject to sections 46A and 47, payable to his spouse or de facto partner, at the rate of two-thirds of the pension payable to the pensioner at the time of his death. (2) On the death of a woman pensioner, pension is, subject to sections 46A and 47, payable to her spouse or de facto partner, at the rate of two-thirds of the pension payable to the pensioner at the time of her death. (3) (Repealed) (4) Notwithstanding the foregoing provisions of this section, but subject to section 47, where a pensioner referred to in subsection (1) or (2) had contributed for not more than 4 units of pension and had received a pension increase in terms of section 2 of the Superannuation (Amendment) Act 1970, the pension payable to the pensioner's spouse or de facto partner shall not exceed $20 per fortnight, but nothing in this subsection affects the operation of Division 6. (5) A reference in subsection (1) or (2) to a pensioner does not include a person who is entitled to receive only a pension under this section or section 30. 140Section 91(1) of the Act is in the following terms: 91 Time for making elections, applications and choices (1) Notwithstanding anything contained in this Act (subsection (2) excepted), an election, application or choice under this Act or any Act amending this Act: (a) shall be in writing, (b) may be made on or before: (i) the last day on which, but for this paragraph, it could be made, or (ii) the expiration of the period of 2 months after the right to make it arises, whichever is the later, but is not validly made unless received in the office of STC on or before the last day on which, pursuant to this paragraph, it may be made, (c) shall in the case of an election under section 21C take effect as from such date, or where such election is in respect of different amounts as from such respective dates, as STC determines and, in the case of any other election, application or choice, take effect and be operative where provision therefor is made by or under this Act as from the date so provided, or where no such provision is made as from the date it is received in the office of STC or such other date as STC may determine, ... 141Sections 50(1)(a) to (f) and 51(1) and (2) of the SA Act are in the following terms: 50 Principal functions of STC (1) The principal functions of STC are: (a) to administer the STC schemes, and (b) to invest and manage the STC funds, and (c) to provide for the custody of the assets and securities of the STC schemes, and (d) to ensure that benefits payable to the persons entitled to receive benefits under the STC schemes are paid in accordance with the Acts under which the schemes are established or constituted, and (e) to determine disputes under those Acts, and (f) to exercise such other functions with respect to the STC schemes and STC funds as the Minister may from time to time approve by order in writing. ... 51 Duties relating to functions (1) STC must: (a) act honestly in all matters relating to its functions relating to the STC schemes, and (b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and (c) ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and (d) not enter into any contract or arrangement, or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC's functions as a trustee. Note. The duties contained in subsection (1) reflect the covenants required of superannuation scheme trustees under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. (2) In exercising its functions, STC must have regard to: (a) the interests of persons entitled to receive benefits under the STC schemes, and (b) the Heads of Government Agreement, commencing 1 July 1996, relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, and (c) the future liabilities of the STC funds, and (d) any statement in writing of the policy of the Government on any matter that is relevant to the functions of STC given by the Minister to STC. ...

Issue Four Consideration 142The question originally framed, with respect to issue four, morphed, during these proceedings, into a series of subsidiary questions expressed as follows: whether the election made by Mrs Hildebrand via her attorney "could have" taken effect prior to her death and, in the respondent's supplementary submissions, "[m]ust the respondent have satisfied itself as to validity before the election could take effect?". 143The pith and substance of the respondent's contention came down to the following: the election purported to have been made by Mrs Hildebrand in the Trenches communication of 20 April 2010 could not, pursuant to the requirements of the Act, and, in particular, s 21C(6)(a), have taken effect prior to her death. It should be noted, however, that the respondent's contention did drift into a discussion about the proper exercise of the discretion residing in the STC under s 91(1)(c) of the Act, a matter to which I will return after further considering, in short form, the basis for the respondent's contentions in this respect. 144Without detracting from the summary of the respondent's submissions set out earlier in this judgment, the basis for the preceding proposition appears to be as follows: (1)It would be incongruous, having regard to s 21C(6)(a), to allow the election to take effect before the determination by the STC of the underlying pension right (of Mrs Hildebrand) itself; (2)Section 21C(6)(a) distinguishes between the making of an election and its taking effect. It follows that the taking effect of an election requires something more than the making of an election; (3)Section 21C(6)(a) reflects a legislative intention that, where the death of an elector occurs at a time between the making of an election and its taking effect, the election is "deemed to be revoked". This was said to be gleaned from a "natural reading" of the words of s 21C(6)(a). This conclusion was supported by the provisions of ss 50 and 51 of the SA Act, which provisions required the respondent, in exercising its functions, to have regard to the future liabilities of the STC funds. Section 21C(6)(a) has the purpose of protecting the STC fund; (4)Section 21C(6)(a) would be a meaningless provision if an election was allowed to take effect on the basis of information provided to the STC after the elector's death; (5)The central question arising under both s 21C(6) and (7) is when an election "takes effect". This, it was contended, occurred at a date determined by the STC under s 91(1)(c) of the Act. The discretion conferred upon the STC under that section is open ended, and must be exercised having regard to the provisions of ss 50 and 51 of the SA Act; (6)It was conceded that it would be an improper exercise of the discretion under s 91(1)(c) if an election which was otherwise valid was prevented from falling within the purview of s 21C(7) simply because the STC determined that it took effect at a date later than the death of the elector. However, in relation to the present case, the STC could not have determined, under s 91(1)(c), that the election made by Mrs Hildebrand took effect prior to her death. This was because it did not have sufficient information to determine, at the time of Mrs Hildebrand's death, whether a valid election had been made. 145When summarised in that way, the key proposition that the respondent sought to advance may be refined in the following manner: s 21C(6)(a) itself has the effect, given the nature and circumstances of the purported election in this case, of precluding the purported election having effect under the Act prior to the death of Mrs Hildebrand, notwithstanding or permitting the discretion residing in the STC under s 91(1)(c). 146Before considering the merit of these propositions, it is appropriate to discuss the statutory scheme under which the present dispute comes to be considered (and, in particular, the various interlocking provisions of the Act and the SA Act which bear upon the resolution of that dispute). 147Part 2 of the Act (entitled 'The State Superannuation Fund') provides that the STC is responsible for maintaining and managing the State Superannuation Fund. 148By Div 1 (entitled 'Grant of pensions and benefits') of Pt 4 (entitled 'Pensions and benefits') of the Act, contributors who have served for at least 10 years with one or more employers are entitled to retire on a pension after reaching the age of 60 years (s 21(1)). Division 2 (entitled 'Grant of pensions and benefits') of Pt 4 sets out the conditions for the grant of pensions and benefits in various situations and provides, inter alia, that on the death of a male pensioner, a pension is payable to his spouse or de factor partner (s 31(1)). Division 1 of Pt 4 also provides, inter alia, that a person who is entitled or becomes entitled to a pension may commute that pension to a lump sum (s 21C(1)) and sets out various conditions in that respect (see, for example, ss 21(4) and 21D). That Division also provides outcomes for a situation where a person entitled to a pension elects to commute their pension to a lump sum but dies before the lump sum is paid (s 21C(6) and (7)). (The operation of those provisions is, of course, relevant to the present case and will be considered in detail below.) 149Part 7 of the Act (entitled 'General provisions') provides, amongst other things, details of the time for making elections, applications and choices under the Act including elections to commute made under s 21C(1) (s 91(1)) and empowers the STC to determine when such elections will 'take effect' (s 91(1)(c)). (It can be noted that the expression "take effect" or "takes effect", which also appear in s 21C(6) and (7), mentioned above, is relevant to the question raised by issue four and will be considered below.) 150The STC is established under Pt 1 (entitled 'Preliminary') of the SA Act (s 3). The objects of the SA Act provide, inter alia, that the STC shall be established as the trustee for the State defined benefit public sector superannuation schemes. 151By Div 1 (entitled 'Establishment and principal functions of STC') of Pt 3 (entitled 'Trustee for STC Schemes (STC)') of the SA Act, the principal functions of the STC are, inter alia, to administer the STC schemes, ensure that benefits payable to the persons entitled to receive benefits under the STC schemes are paid in accordance with the Acts under which the schemes are established or constituted and to determine disputes under those Acts (s 50(1)(a), (1)(d) and (1)(e)). 'STC scheme' and 'STC fund' are defined under the SA Act as meaning a "superannuation fund or superannuation scheme established or constituted" under any of the Acts listed thereafter, including the Act. 152Division 1 of Pt 1 of the SA Act also sets out the factors to which the STC must have regard in exercising its functions relating to the STC schemes (including, as noted, the State Superannuation Fund constituted by the Act). The factors to which the STC must have regard include, inter alia, the interests of persons entitled to receive benefits under the STC schemes and the future liabilities of the STC funds (s 51(2)(a) and (2)(c)). 153Whilst the parties did not discuss the statutory source of Mrs Hildebrand's reversionary pension entitlement, it appears to arise, having regard to the factual circumstances of this matter, under s 31 of the Act. The letter of 19 May 2010, sent by Pillar on behalf of the STC, demonstrated that the late Mr Hildebrand was a pensioner under the Act, having formerly been a contributor under the Act who retired. By virtue of s 31(1) of the Act, Mrs Hildebrand was, as his spouse, then entitled to a reversionary pension from the date of his death. 154Whilst the Pillar letter of 19 May 2010 stated that the administrator had "determined", on behalf of the trustee of the Scheme, that Mrs Hildebrand was entitled to be paid a reversionary pension benefit effective 21 January 2010 (the day after her husband's death), when the statutory scheme is properly considered, the power exercised by the STC was, in substance, to verify the entitlement and then, if appropriate, authorise payment (having established that the pre-conditions attaching to the entitlement were satisfied). In other words, having regard to the fact that Mrs Hildebrand was the wife of a deceased pensioner, the pension vested in Mrs Hildebrand, by s 31(1), upon and from her husband's death. The STC was required, under its principal functions as specified in s 50(1)(d) of the SA Act, "to ensure that benefits payable to the persons entitled to receive benefits under the STC schemes [were] paid in accordance with the Acts under which the schemes are established or constituted", and did so by its authorisation and communication in the Pillar correspondence of 19 May 2010. 155In the result, it would appear that Mrs Hildebrand (or her attorney) may have elected to commute her pension at anytime after 21 January 2010. That conclusion is available for two reasons. First, following from the preceding analysis, Mrs Hildebrand was a person "entitled to" a pension under the Act for the purposes of s 21C(1) of the Act. Secondly, she met all the conditions for the making of elections under s 21C specified in the Act (see, in particular, s 21C(2) and (4), s 21D(1) and s 91(1)(a) and (1)(b)). 156The discussion in the preceding paragraphs of this judgment hinge upon the words of s 21C(1) of the Act, which refer to a person who is "entitled to" a pension under the Act. However, the provision is wider than that, and also operates in circumstances where a person "becomes entitled" to a pension. The expression "becomes entitled" should be construed as meaning, in the context of s 21C(1), that a person who is eligible for a pension benefit, but whose entitlement to that benefit vests or materialises at a later time, may nonetheless make an election at an earlier time to commute that benefit to a lump sum. 157This conclusion is consistent with the provisions of s 21C when considered as a whole. Those provisions contemplate elections being made in advance of a pension vesting in (or becoming the right of) a contributor (see s 21C(15), (16) and (17)). It follows that, even if it was concluded that Mrs Hildebrand's reversionary pension entitlement had not vested upon the death of her husband, as discussed above, and, therefore, she was not a person "entitled to" a pension per se at the making of the election to commute on 20 April 2010 (until authorisation on 19 May 2010), she was, nonetheless, entitled to commute that pension, by virtue of the words "becomes entitled" in s 21C(1). That conclusion is reinforced by the fact that the STC did determine that she was entitled to a reversionary pension at a date after the making of the election (on 19 May 2010). (It may be noted that, whilst this discussion has focussed upon the question of a valid election under s 21C(1), the STC Disputes Committee, in its letter of 7 December 2011, noted, in upholding the original decision reached by the STC, that no valid election had been made in accordance with s 91 of the Act.) 158It is in this statutory context that the contentions put by the respondent in respect of issue four (set out at [142] - [145] above) must be considered. 159In my view, based on the answers to those questions which shall follow, and when s 21C(6)(a) is properly construed, having regard to the text of the provision and its immediate and broader statutory context and purpose, the key or seminal contentions of the respondent referred to above must be rejected. 160The respondent correctly submitted, in my view, that the phrase "takes effect" in s 21C(6)(a) should be construed as containing ingredients different to the 'making' of an election, such that the taking effect of an election required some factor in addition to the making of an election. That much is clear from the distinction between those two expressions drawn in the sub-section. 161However, notwithstanding the conclusion that the two notions are, in substance, distinct, it does not necessarily follow from the text of s 21C(6)(a) that the taking effect of an election may not be co-incident in time with the making of an election. Nor does it follow from the face of the provision that the expression "takes effect" means the date upon which an election to commute is considered, authorised or determined by the respondent. 162In its ordinary grammatical sense, the phrase "takes effect" means comes into force, starts to apply or to become operative. The Macquarie Dictionary, for example, defines 'take effect' as, inter alia, "the state of being operative; operation or execution; accomplishment or fulfilment". In a similar fashion, the Oxford English Dictionary defines 'take effect' as, amongst other things, "[t]he state or fact of being operative or in force". It follows that the expression "takes effect", by its ordinary meaning, is not synonymous with the expressions 'determination' or 'adjudication', as the former expression has a purely temporal meaning concerning the time from which a determination or adjudication may operate. 163This construction finds support when the words of s 21C(6)(a) are read in light of the broader statutory context in which the provision appears. 164First, a consideration of the words of s 21C(6)(a) in the immediate broader context of the provision of s 21C provides support for that conclusion. In particular, in the process of construction, the words of s 21C(6)(a) cannot be considered in isolation from the words of s 21C(7). That sub-section provides an outcome which is contrary to that provided in s 21C(6)(a) but dealing with essentially the same situation. The expression "takes effect" is used in s 21C(7) to indicate that, where a person has died after making an election to commute and that election taking effect, but before the lump sum being paid, the lump sum will be paid to the person's estate. The determination or authorisation by the STC in that case may post date the death of the person. 165Section 21C(9) employs the expression "took effect" in the definition of "prescribed commutation factor" and "prescribed period" in a temporal sense to describe, for the purposes of delineation within the definitions, when an election had occurred. 166Secondly, the construction finds further support when the words of s 21C(6)(a) are considered in the context of the Act as a whole. 167In that part of s 91(1)(c) concerning elections made under s 21C, the phrase "takes effect" is used in the context of 'dates', the composite expression being "take effect as from such date". Thus, the expression is used with a sense of an operative date (in a similar fashion, the phrase "takes effect" seems to be used co-extensively with the expression "any lump sum payable" appearing in s 21C(7)). Section 91(1)(c) also makes clear the distinction between the date an election will take effect and the making of a determination of an election by the STC. Thus, the sub-section refers to the date of the election taking effect being the date that the STC "determines", thereby permitting a range of possible operative dates other than the date of determination (but also including such a date). That conclusion is amply confirmed by the terms of s 91(4) where the language of the sub-section amplifies the distinction to which I have referred. 168It follows from this analysis that the phrase "takes effect" in s 21C(6)(a), when the provision is properly construed, must mean the date from which any election operates and should not be constrained to mean the determination of, or date of determination or authorisation, of any election. 169The respondent's contentions, however, have a further dimension. It submitted that, notwithstanding the provisions of s 91(1)(c), and the absence of words appearing in s 21C conforming expressly to the construction it proposed, an implication may be found in the provisions of s 21C(6)(a) to the effect that an election made under s 21C(1) could not take effect under that sub-section unless and until the respondent was in receipt of sufficient information upon which that determination could be made to its satisfaction (that is, until the elector had provided sufficient information to prove that his or her election was valid). 170It is unclear as to what part of the premise to that contention (namely, the absence of the requisite information or proof of a valid election) was predicated upon the considerations or factors relied upon by the respondent in relation to issues two and three on this appeal (I note that this includes any submission as to the purported absence of information regarding the status of Trenches). Plainly, if that were so, it would affect the veracity of the contention (although, presumably, the STC would argue that there was an absence of sufficient information, at the point of the making of the election or immediately before the death of Mrs Hildebrand, to satisfy what were the requirements of the Act). 171Before turning to the submission of the respondent (described at [169] above) per se, it is appropriate to briefly further examine the veracity of the premise so formed, as it is based on the absence of information providing proof of validity. 172To the extent that the respondent relied upon the absence of an express reference to the appellant holding a Power of Attorney in the correspondence of 20 April, then it must be rejected as that Power of Attorney was made sufficiently clear by the annexures accompanying the correspondence. Further, following from that conclusion, the absence of an express reference to Trenches acting on behalf of the appellant in the 20 April correspondence (or, to put it slightly differently, the absence of any express statement as to on whose instructions the 20 April letter was written), to the extent that that was relied upon by the respondent, must also be rejected in the light of previous correspondence sent from the respondent to Mrs Hildebrand, care of Trenches. 173Furthermore, the only documents which did not accompany the 20 April letter were a privacy consent form, copies of the appellant's drivers license and Mrs Hildebrand's pension concession card. It is difficult to understand how the absence of these materials may have resulted in the election being ineffective for uncertainty or lack of proof at the date of its making. 174However, there are further and more fundamental difficulties for the respondent's contention (that an election cannot take effect until such time as the STC has the full capacity, by the provision of appropriate proof provided by the elector prior to their death, to make a determination as to its validity) than the flaws in the premise upon which it is based. These are as follows: (1)The phrase "takes effect" in s 21C(6)(a) is not co-extensive, for reasons earlier provided in this judgment, with the making of a determination by the STC as to when the election will take effect or, for that matter, a determination as to the validity or effectiveness of the election. It follows from that conclusion that, in addition to the making of a determination as to the validity of an election per se, the capacity or ability of the respondent to make a determination as to validity (at the point of an election or otherwise) also cannot, as a matter of logic, constitute a basis for determining if or when such an election may take effect; (2)Section 91(1)(c) of the Act makes express reference to the issue of when an "election under s 21C" may "take effect". It follows that the contention of the respondent that s 21C was notably different to the provisions of s 91(1)(c) of the Act and, thus, that s 91(1)(c) did not assist in the resolution of the question of when an election takes effect, must be rejected; (3)The Court should not construe s 21C(6)(a) as containing an implication which is contrary to an express provision of the Act, namely s 91(1)(c). That provision provides that the determination of the date of effect under s 21C(6)(a) must only be made by the STC in accordance with that provision; (4)The submission by the respondent that, if an election was allowed to take effect on the basis of evidence provided after the elector's death, the provisions of s 21C(6)(a) would be rendered meaningless and with no work to do should be rejected. The submission of the respondent, in this respect, must be premised upon the assumption that the taking effect of an election is co-extensive with the making of a determination by the STC that a valid election has been made. For reasons I have already referred to, that is not necessarily the case. But the respondent's submission suffers in a further respect. Implicit in the submission is an assumption that s 21C(6)(a) only applies to or operates in respect of situations where an elector dies after having made an election but before a determination has been made by the STC as to the validity of that election. When considered in the context of s 21C as a whole, however, the reach of the sub-section is clearly wider. By s 21C(5), for example, a person may make an election under s 21C in respect of two different amounts and as from two different dates. By s 91(1)(c), an election, where it is in respect of different amounts, shall take effect as from such respective dates as the STC determines. In the event that an elector dies after the earlier date in respect of one amount has passed but before the later date in respect of the other amount, s 21C(6)(a) would be brought into operation. Further, as earlier discussed, an election to commute may be made by a person who "becomes entitled" to a pension under s 21C(1) (that may include, for example, a contributor who will become entitled to a pension upon retirement, but who may make an election to commute that pension to a lump sum prior to their retirement - see s 21C(15) and (16)). In the instance of an election being validly made by a person who is to become entitled to a pension (for example, a contributor to the STC fund), but where that person dies before becoming entitled to a pension (for example, before that contributor reaches retirement), s 21C(6)(a) would operate to deem the election made to be revoked. It cannot be accepted, therefore, that s 21C(6)(a) would have no work to do if the respondent's interpretation of the expression "take effect" were not accepted; (5)The submission of the respondent that it would be incongruous to allow an election to commute to take effect before the determination of the underlying pension right itself cannot be accepted. That may be concluded for two reasons. First, Mrs Hildebrand was entitled to a pension, under s 31(1) of the Act, at the date she made the election to commute (having become entitled to that pension following the death of her husband on 21 January 2010). As earlier noted, the STC does not "determine" a person's entitlement to a pension; that entitlement derives from the Act itself (for example, under s 31(1)); the STC verifies any entitlement and authorises payment. Secondly, even if Mrs Hildebrand was not a person entitled to a pension as at 20 April 2010, she was, for the purposes of s 21(1), a person who would become entitled to a pension under the Act (noting the "determination" made by the STC to that effect in the letter of 19 May 2010). Given that the right to make an election to commute is, by s 21(1), no more than a derivative of a present or future pension entitlement, there is no reason why an election should not, at the date its validity is authorised, be determined by the STC as having taken effect at the date it was made (or received) in a similar fashion to the approach taken with respect to Mrs Hildebrand's pension entitlement itself which, once it was verified on 19 May 2010, was made payable from the date it vested on 21 January 2010 (whilst that date of effect arose from the provisions of s 31(1) of the SA Act, the date of effect of a s 21C(1) election similarly has a legislative source, namely, s 91(1)(c) of the Act). I agree with the submission of the appellant, in support of this conclusion, that it is implicit in ss 21E and 21C(7) of the Act that there may be a (perhaps substantial) delay between the time at which an election takes effect and the date at which the lump sum is paid to the pensioner or their estate (which delay shall warrant the payment of interest under s 21E); (6)I agree with the submission of the respondent that ss 50 and 51 of the SA Act must be considered in the exercise of the discretion residing in the STC under s 91(1)(c) of the Act (and in the construction of s 21C(6)(a)). In particular, there must be a balancing of the interests of persons entitled to receive funds and the future liabilities of STC funds (see s 51(2)(a) and (2)(c)). It is plausible, in this respect, that the purpose of s 21C(6)(a) is, as was submitted by the respondent, to protect STC funds. However, it could not be said, in the circumstances of the present case, that, when properly balanced, concern for the future liabilities of the STC funds outweighed the interests of Mrs Hildebrand as a person entitled to receive funds. That conclusion must follow, given that Mrs Hildebrand was, in fact, entitled to a pension (whether or not that entitlement vested upon the death of her husband or at a later date), had made a valid election to commute (as found earlier in this judgment) and had satisfied the preconditions to the making of an election appearing in ss 21C and 21D of the Act. It follows that a proper exercise of the discretion under s 91(1)(c) should have resulted in a determination by the STC that the election took effect prior to the death of Mrs Hildebrand. That conclusion is consistent with the provisions of s 21C(7) of the Act, which plainly reflect a legislative intention to ensure, in circumstances (apposite to those in the present case) where an otherwise valid election has been made but the elector dies before the commutation of the lump sum occurs, that election will, nonetheless, be effective (and the lump sum paid to the elector's estate); (7)I agree with the submission of the respondent that it may be inferred from the terms of the SA Act (in particular, s 50(1)(d) which requires the STC to "ensure" that benefits payable to persons entitled to receive them are paid in accordance with the Act) that, for an election to take effect, an administrative process must be undertaken which requires, at its base, proof of an election. However, when considered in the context of the Act (in particular, s 91(1)(c)), it does not follow that an election may not take effect before that administrative process is complete. Rather, that administrative process may be completed at a later date, at which time the STC, by s 91(1)(c), may then determine that the election took effect at an earlier date (for example, at the date of its making or receipt), both as a general exercise of discretion or one constrained by its own policies (see (9) below). I agree with the contention of the appellant, in this respect, that the respondent's submission that it should or could not determine that the election had taken effect until it had satisfied itself that the election was validly made confuses the making of a valid election with the provision of proof to the STC that a valid election had been made; (8)It follows that I do not accept the submission of the respondent that s 21C(6)(a) reflected a legislation intention simpliciter that, when the death of an elector occurs at a time between the making of an election and its taking effect, the election is deemed to be revoked, where such submission brings with it the implication that an election will not take effect (in the sense of being effective) until the STC determines, at a later time, that is so. I do not consider that, when examined in the light of the proper construction of the Act, a legislative intention could be ascertained that a valid election made before the death of an elector would be deemed to be revoked because the STC did not have, at the point of the election, all that it deemed necessary for proof of validity or effectiveness. By the same token, an election which was not effective prior to the death of the elector could not be made so by later events such as a pension vesting after his/her death; (9)I accept the appellant's contention that the respondent's submissions, with respect to issue four, ignore the determination it had already made, in its "SSS3" policy (set out earlier in this judgment), as to the date at which elections of the kind made by Mrs Hildebrand take effect (there was no evidence or argument advanced by the respondent that the policy did not apply in the present case or that a different policy had been adopted prior to 20 April 2010). Given that Mrs Hildebrand was over the age of 60 at the time of making the election, her pension had already "emerged" (that is, her entitlement to a reversionary pension had materialised on 21 April 2010, either by virtue of the operation of s 31(1) of the Act or the STC letter of 19 May 2010, as earlier discussed) and she had not nominated a date herself for the election to take effect, the election made by Mrs Hildebrand took effect, by virtue of the SSS3 policy, on the date of its receipt by Pillar (being 22 April 2010).

Conclusion re Issue Four 175Mrs Hildebrand, via her attorney, made an election to commute her reversionary pension entitlement. That election was received by the STC prior to her death. Even assuming the information provided on behalf of Mrs Hildebrand was insufficient to fully prove the validity of the election (although, it may be noted, I consider that there was, in fact, substantial compliance by Mrs Hildebrand with the requirement to provide proof having regard to the statutory scheme), s 21C(6)(a) did not, when properly construed (having regard to s 91(1)(c)), operate to preclude, in law, the election, being so made, taking effect for the purposes of that section prior to her death. Whilst not argued as such, it must follow that the deeming provisions of s 21C(6)(a) were not invoked so as to render a 'valid' election (as I have found) revoked. 176Having regard to the respondent's policy ('SSS3'), Mrs Hildebrand's entitlement to a pension, her valid election to commute and her satisfaction of the preconditions in that respect under the Act, a proper exercise of the discretion under s 91(1)(c) of the Act (taking into account s 50 of the SA Act and a balancing of the factors in s 51(2)(a) and (2)(c) of the SA Act) should have resulted in a determination by the STC that the election made in the 20 April 2010 communication by Trenches took effect prior to Mrs Hildebrand's death, namely, at the date of the receipt of the election by the STC (via Pillar). 177It follows from those conclusions that the first of the two subsidiary questions which arose during argument in respect of issue four (which questions appear at [142] of this judgment), concerning whether the election "could have" taken effect prior to Mrs Hildebrand's death, having regard to the provisions of the Act (in particular ss 21C and 91), should be answered in the affirmative. The second subsidiary question, concerning whether the respondent must have satisfied itself to finality as to validity (or effectiveness) before the election could take effect should be answered in the negative. 178Question four as originally framed was in the following terms: "[d]id the election "take effect" before the death of Mrs Hildebrand, notwithstanding the respondent had not satisfied itself of her entitlement to a pension prior to her death, or of Trenches authority to write the letter of 20 April 2010?". The use of the word "did" in that question appears to be a misnomer. Clearly, given that the STC, via its Disputes Committee, decided that no valid election had been made in the 20 April 2010 letter, it was not necessary for the STC to go further and determine when that election took effect. The election 'did not', in that sense, take effect. I am of the view that, in reality, the issues requiring resolution, under the heading of question four as originally framed, were whether the election made by Mrs Hildebrand 'could' or 'should' have taken effect prior to her death. That question was addressed in this section.

Overall Conclusion 179This, as noted, is an appeal under s 88 of the SA Act against a determination made by the STC Disputes Committee, pursuant to s 67 of the SA Act, rendered on 7 December 2011 (set out at [53] of this judgment). I have earlier discussed the nature of the hearing and the discretion exercised by the Court under s 88. 180The ultimate decision in this matter must concern that appeal. 181As earlier mentioned, the parties agreed that the appeal so described, and the consequential exercise of the powers by the Court under s 88, would be determined by the resolution of three questions. Those questions have been resolved in favour of the appellant in the manner disclosed above. Ultimately it is my view that, in a general sense, a valid election was made in the correspondence of 20 April 2010. In accordance with the way in which this matter has gone forward, therefore, the result should be that the appeal is upheld. 182However, the Court has not heard submissions from the parties as to the final disposition of the proceedings under s 88 or the orders appropriate to be made, other than in the context of the abovementioned three questions. 183The Court thus proposes to give the parties the opportunity to make submissions in relation to those matters (that is, the general disposition of the appeal and appropriate orders) including submissions as to costs. In that light, the Court will make orders for the provision of written submissions as to the final disposition of the proceedings in that respect.

Orders 184In the circumstances, the Court makes the following Orders: (1)The appellant shall file and serve submissions as to the final disposition of this appeal (including draft orders) within 14 days from the date of this judgment; (2)The respondent shall file and serve submissions as to the same within 14 days from the date of receipt of the appellant's submissions; (3)The appellant shall have a further seven days from the date of receipt of the respondent's submissions to file and serve any submissions in reply; (4)The submissions prepared by the parties should indicate whether the parties wish to be heard orally regarding the final disposition of the matter. Should either or both parties so elect, the Court will list the matter for further hearing after the closing date of the filing of submissions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2013

SSS, the Superannuation Act 1916(NSW)

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